Taylor & anor v Smith & anor

Land and Environment Court (NSW)|2014-05-13|Before: Mr P, Preston CJ

Judgment 1COMMISSIONER: The applicants purchased their Mosman property in 1991. In 2006, they completed construction of a three-storey dual occupancy. The applicants reside in the rear dwelling. The respondents' property is down slope and to the north of the applicants' property. 2In late 2005, before completion of the applicants dwelling, the respondents planted a row of Leyland Cypress along their southern boundary in order to provide a visual screen and to afford privacy to their backyard and the rear of their dwelling. 3The applicants have applied under s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the twice yearly pruning of the Leyland Cypress, and a pot of bamboo, to a height of 1.2m above the top of the dividing fence. These orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling and severely obstruct views from their dwelling. 4Section 14B states: An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land. 5The respondents oppose pruning to this level as they contend it will significantly reduce their privacy by opening up views of their outdoor entertaining areas from the top two levels of the applicants' dwelling. 6In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first of these is whether Part 2A applies to the trees the subject of the application. 7Section 14A(1) states: This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 8There is no dispute between the parties that trees 1-13, the row of Leyland Cypress, are planted so as to form a hedge and are in excess of 2.5 m tall. At the hearing one of the trees in the group of 1-9 was measured from the respondents' property at approximately 4.2m and the group of trees 10-13 was at least 6m tall. Therefore s 14A is satisfied for these trees. 9Tree 14 is a pot of bamboo. The applicants contend that this is part of the hedge by virtue of bamboo being prescribed in the Trees (Disputes Between Neighbours) Regulation) 2014 as a tree for the purpose of the Act and its location at the eastern end of the row of Cypress. 10In Blau v Levi [2010] NSWLEC 1371, the Court considered a Part 2A application involving containerised plants however in that matter, there were a number of containers arranged so as to form a hedge. 11In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of s 14A(1)(a). At [28] His Honour states: 28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present. 12I also note Preston CJ's findings in Johnson at [43], that in essence, a single tree cannot acquire the status of being planted so as to form a hedge if, at a later date, other trees are planted near it. In my view, the converse also applies that a single tree, planted at a later date, cannot acquire the status of a hedge by virtue of being planted, or in this case placed, near an existing hedge. The significance of timing of planting is discussed at length in Coleman & anor v Leddy & anor [2013] NSWLEC 1094 and in Golchin v Turner [2013] NSWLEC 1138. 13In this matter, the pot of bamboo has not been 'planted' with the other trees so as to form a hedge. Photographs in Exhibit 1 taken in late 2005 from the respondents' property show the newly planted Cypress but the pot of bamboo is absent. The bamboo is shown in a photograph taken in November 2012. 14Therefore, I am not satisfied to the extent required that T14, the pot of bamboo, is a tree to which Part 2A applies. If I am wrong in this I will discuss its impact on views and sunlight. 15Having determined the trees to which Part 2A applies, the next jurisdictional test to be considered is s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 16If s 14E(2) is satisfied in the applicants' favour, the Court's jurisdiction to make orders under s 14D is engaged however this requires consideration of factors in s 14F. 17The applicants have nominated four windows for sunlight and five viewing locations; all are north facing. W1/V1 is the ground floor family room; W2/V2 is the adjoining ground floor kitchen. W3/V3 is the main bedroom on the first floor; W4/V4 is a second bedroom on the first floor; and V5 is from the study located in the attic. 18For the purpose of the hearing, both parties set up height poles. Poles on the applicants' property indicated two levels above the dividing fence - 1.2m and 1.5m. The 1.5m level is slightly below the current height of trees 1-9. The side setback of the applicants' property is about 3.7m from the dividing fence.

Do the respondents' Leyland Cypress trees severely obstruct sunlight to windows of the applicants' dwelling? 19The applicants contend that the dwelling was designed with a northern aspect to maximise sunlight to it in winter when sunlight is most valued. Photographs taken at about 3pm close to the winter solstice in 2006 (included in Exhibit B) show shadows cast by the dividing fence and the two eucalypts. Photographs taken by the respondents in late 2005 show the trees as newly planted and no more than 1m tall. 20According to the applicants' evidence, the ground floor family room and kitchen are the centre of their family activities and most frequently occupied. When the application was made, the applicants state that on the winter solstice, W1 receives no sunlight and W2 receives about 2 hours and 30 minutes from 9am to 11.30am. The canopies of the two eucalypts exacerbate the shadowing. 21Helpfully, the applicants engaged an architect, Mr Andrew Spaile, to prepare shadow diagrams. Mr Spaile relied on a survey of the applicants' property, a survey of the tree heights prepared by a registered surveyor, Mr Geoffrey Browne dated 20.03.2014 and data on adjusted tree heights for trees trimmed during April 2014, as supplied by the applicants. The shadow diagrams were prepared on 15.04.2014 for the winter solstice, on an hourly basis between 9.00 am and 3.00 pm. The effects of the different species, bamboo, cypress and eucalypts are clearly illustrated. 22However, because of pruning and the accuracy of the heights of trees 1-9, an issue raised by the first respondent, the applicants engaged Mr Browne to resurvey the heights of trees 1-9. This was undertaken on 4 May, 2014 some 9 days before the hearing. The levels were provided to Mr Spaile who prepared new shadow diagrams dated 6 May 2014. The most recently produced shadow diagrams form the basis of the Court's determination. 23The shadow diagrams show W1 almost fully obscured by trees 10-13 from 9.00am until 11.30 am. From 12pm - 3pm, on average about 50% of the window is shaded by trees 1-10. For W2, there is a minor obstruction by the bamboo at 9am, partial obstruction by T13 at 10am and complete obstruction from about 11.00 to 2pm as a consequence of trees 10-13. Trees 8-9 obstruct about 75% of W2 at 3pm. By 3pm, shading to the south-western corner of W1 from the property to the northwest commences. The eucalypts produce dappled shade during the day. 24The shadow diagrams illustrating a height of 1.2m above the top of the fence, the applicants' preferred position, show only the lowest third of W1 covered by any of the Leylands at 9am. The remaining diagrams show the top of the hedge at or below the bottom of W1, which is lower than W2. 25At 1.5m above the fence, at 9 am the lowest 50% of W1 is obstructed, at 10am about 20% and then no obstruction until 3pm when about 35% is obstructed and by that time the shadow from an adjoining building takes effect. W2 is virtually unobstructed by the Leylands at any time. Clearly, the impact of the eucalypts remains. 26There is no demonstrated impact of the respondents' Leyland Cypress trees on sunlight to any of the other nominated windows. 27On the evidence of the shadow diagrams, I am satisfied that trees 10-13, that is the Leylands currently pruned to about 6m, severely obstruct sunlight to the ground floor windows, W1 and W2. The remaining trees have a moderate impact on those windows. Therefore I am satisfied that s 14E(2)(a)(i) is met in regards to these windows and trees 10-13. 28In regards to the balancing of interests inherent in s 14E(2)(b), this requires consideration of many of the elements in s 14F and it is useful to consider these at this stage. Relevantly:

The trees are some 4m from the applicants' northern wall; given the change in levels between the properties, they appear taller from the respondents' property (s 14F(a)).
The trees were planted during the construction of the applicants' dwelling (S 14F(b)).
Leyland Cypress (xCupressocyparis leylandii) is not protected under cl 5.9 - Preservation of trees and vegetation, in Mosman Local Environmental Plan 2012 (MLEP) (s 14F(d)).
Notwithstanding the respondents' submissions, the applicants maintain that their dwelling complies with council's controls and was constructed in accordance with all conditions of consent. Both parties mentioned the adjoining development at 1B Medusa Street and the issues of privacy and solar access. The respondents' position is that both the applicants' development and the Medusa Street development have severely compromised the privacy of their dwelling which the respondents have sought to rectify by planting screens (s 14Fe)).
The trees contribute to the natural landscape of the respondents' property and are highly valued for the privacy and amenity they afford the respondents (discussed in more detail below) (s 14F(h)(l)).
Ms McKenzie, the applicants' arborist opined that reducing trees 10-13 to a height of 1.2 or 1.5m, while representing a reduction of about one third of their height, would be tolerable given their species, youngish age and relatively small size. She stated that keeping the row of trees to that level would thicken then up below the cutting height and this would assist with privacy but increase the shading effect (s 14F(k)).
Apart from the row of Leyland Cypress it is agreed that the canopies of the two eucalypts contribute to the shading but given the open character of their canopies, the effect is one of dappled shade. There is no significant impact of other structures on sunlight to the nominated windows. Although not a nominated window, there is a west-facing window in the family room, however, the design of the dwelling and the applicants' landscaping are likely to prevent direct sunlight through this window (s 14F(m)).
The respondents have taken steps to prune the trees to maintain their privacy and to allow more solar access for the applicants' property (s 14F(n)).
The hours of sunlight lost are discussed elsewhere; the critical times are the 2 months either side of the winter solstice (s 14F(o)).
The trees are evergreen (s !4F(p)).
The sunlight is obstructed to the family room and kitchen, rooms in which the applicants contend they spend many hours (s 14r)). 29The main issue raised by the respondents is the loss of privacy that would result if the trees were cut to 1.2m, or indeed, to 1.5m - in particular, trees 10-13 as these trees prevent overlooking from the top floor study. 30In this regard, I made a number of observations during the hearing. The following comments are based on pruning the hedge to 1.5m. From W1 and W2, there would be no overlooking into the respondents' property. W3 and W4 are bedroom windows, therefore it would be expected that use of these rooms during the day is not frequent and there would be a general desire for anyone in a bedroom to maintain their own degree of privacy. From W4 I noted that someone would have to stand against the window to see anyone on the respondents' deck. From W3 a taller than average person may see someone seated at the outdoor table; a person of average height would see less. From W5, a study, someone would have to stand very close to the window to look down onto the respondents' deck. Given the outlook, it would be more likely that someone would be looking at the district views beyond the respondents' property. 31In regards to the study window, the applicants maintain that the blinds in this room are usually closed to limit excessive heating and, as the study is used mostly at night, the blinds are closed. 32I also note that the parties' land is zoned R3 - Medium Density Residential in MLEP, and the dwellings are built on a slope. In this respect, some overlooking is inevitable, but should not be unreasonable.

Findings - sunlight 33After considering the evidence, viewing the site, and having regard to the parties' submissions, I am satisfied that the applicants' interests in having the obstruction of sunlight to W1 and W2 remedied, outweighs the respondents' desire for privacy from all levels of the applicants' dwelling. . In my view, the anticipated loss of privacy is not unreasonable in the circumstances. 34While I note the respondents' questioning of the accuracy of the heights of trees 1-9, I am satisfied that the survey results are likely to be more accurate than an average taken on site with a height pole. However, as considered above, the most severe impact is not from these trees but trees 10-13. 35Therefore as s 14E(2) is satisfied, the Court's jurisdiction to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window on the applicants' land, is engaged. 36It was put to the parties that in similar cases where there are competing interests between winter sun and privacy, the Court has made orders for an annual prune in late April/early May. This provides for sunlight over the winter months when the rate of growth is also slow. However, as the trees grow through the warmer months, the increased growth provides more privacy at a time when people are more likely to be using outdoor entertainment areas, and shade is of more benefit. 37Having considered the shadow diagrams, a height of 1.5m above the fence is sufficient to provide solar access to W1 and W2 during the winter months. Pruning to 1.2m cannot be justified. Orders will be made for the respondents to have the trees pruned to a height of 1.5m on an annual basis. While trees 10-13 are the main concern at this stage, in the interests of practicality, all trees in the hedge are to be pruned to this height. The first prune will be ordered within 30 days of these orders however, from 2015 onwards, the annual pruning is to take place between 15 April and 15 May until such time as the hedge is removed. 38Orders will be made requiring the applicants to provide all reasonable access on reasonable notice for the purpose of quoting and carrying out the work. It may be more efficient and easier (and therefore cheaper) for a contractor to prune the trees from the applicants' side of the fence. 39Although I am still not satisfied that the pot of bamboo is a tree to which Part 2A applies, as it is not severely obstructing any sunlight to W1, no orders will be made for any intervention with it.

Do the respondents' Leyland Cypress trees severely obstruct views from the applicants' dwelling? 40The applicants contend that the Leyland Cypress severely obstruct district views and views of the sky from W1 and W2. From W3 and in particular W4, they contend that the trees severely obstruct district views including views of the water of Middle Harbour west of the Spit Bridge. They agree there is no obstruction from V5 but included that location to demonstrate the views that could be possible from the first floor. 41As observed on the day of the hearing, standing views to the north from W1 are principally of the timber fence, the hedge behind it, the canopies of two Eucalypts growing in the south-western corner of the respondents' property behind the hedge, and the sky. From the kitchen window (W2) further to the east, the views are generally of the fence, hedge, the rear of the respondents' dwelling and the potted bamboo, T14. 42While I acknowledge that I am below average height, it would seem to me that lowering the hedge to 1.2 m would simply allow more views of the sky between the top of the hedge and the canopy of the Eucalypt. This appeared to be the general consensus. 43From W3, the applicants contend there are distant glimpses of boats on Middle Harbour between trees and buildings; Seaforth is in the distance. While I could not see the boats, they could just be seen by someone of average height (considered to be an eye level at about 1.6m above ground). The district views from W3 are across trees 1-9 and through the canopies of the two eucalypts. 44From W4, the second bedroom, the taller Leylands obstruct views to the northwest however, district views are available across the respondents' roof. The field of view is quite narrow being limited by the taller Leylands to the west and by a residential flat building/ new development to the northeast. 45As stated above, there is no obstruction of views from the study on the top floor, V5. 46Given my findings in regards to obstruction of sunlight, the contended loss of views from W3 and W4 are resolved without having to determine whether the impact on views is severe. 47In matters concerning impacts on views, the Court usually considers the assessment process described in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. 48The first step in this process is to assess the nature of the view affected. Generally, water views are valued more highly than land views, iconic views are valued more highly than those without icons, and whole views are valued more highly than partial views. The second step considers standing or sitting views and boundaries. Retention of sitting views across side boundaries is often unrealistic. The third step essentially considers the rooms from which the views are seen and provides for a qualitative rating from negligible to minor, moderate, severe and then devastating. Views from living areas and kitchens are valued more highly than those from bedrooms or service areas. 49Therefore, considering views from W1 and W2, while these are living areas of the dwelling, the current views are described above. I am not satisfied on the evidence that anything other standing views of the fence, nearby residential dwellings and associated vegetation, in particular the respondents' eucalypts, were ever possible from these windows. Therefore I do not propose to make any orders for any additional pruning of the respondents' trees. Even if I considered s 14E(2)(a)(ii) satisfied, s 14E(2)(b) would not be found in the applicants' favour.

Conclusions and orders 50Having considered the evidence and the parties' submissions, and for the reasons given in paragraph [36], the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders, the respondents, at their expense, are to have the row of 13 Leyland Cypress trees on their rear southern boundary pruned to a height of 1.5m above the timber dividing fence. (3)The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and carrying out of the work in (2). (4)From 2015, the work in (2) is to be undertaken on an annual basis between 15 April and 15 May until such time as the trees are removed. (5)Order (3) applies to order (4). (6)All exhibits except A and F are returned.

Judy Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2014

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Judgment (5 paragraphs)

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Cases Cited (5)