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[2010] NSWLEC 1320
Land and Environment Court (NSW)
2010-11-24
Mr P, Centre J
Original judgment source is linked above.
The applicant's contentions and the evidence. 5 The applicant purchased his property in May 2006. The property is one of four dwellings (two dual occupancies) in a development approved in 2003 under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability. 6 The rear of the applicant's dwelling faces generally north. The respondents' property forms the northern boundary of the SEPP 5 development. In the application, the applicant states that the hedge was 2.5 to 3m high when he purchased the property. 7 The windows said to be affected by the hedge are W1 - glass sliding doors from the living room (on the northern side of the dwelling), W2 - glass sliding doors from the dining room that face east, W3 a north-facing window from the dining room and W4 the north-facing kitchen window. There is a polycarbonate awning between W1 and W2. It is noted that glass sliding doors are deemed to be windows for the purpose of the Act (s 3). 8 W1 is approximately 8m from the dividing fence and W3 and W4 are about 5.5m from the fence. The fence is 2.1m high. The level of the paving at the rear of the dwelling is approximately 1m below the original soil level at the base of the fence. There is a terraced garden bed along the northern boundary of the applicant's property but no plants are higher than the fence. 9 The garden wall that separates the applicant's property from the neighbouring attached dwelling to the east is about 1.9m high and the wall to the west is 2.5m high. 10 The applicant states that when he and his wife moved in they had sun in winter that penetrated some metres into the living and dining rooms and now they receive no sun from early May until late August although they receive sun at other times of the year. The applicant did not provide any shadow diagrams to support this contention.
11 The hedge was measured with height sticks at 4 positions along the boundary fence from within the applicant's property. The heights ranged from about 5.2m at the western end to 3.7m at its lowest towards the centre to 4.7m and then to 5m at the eastern end. 12 Photographs tendered by the applicant and taken from an upstairs window show the variation in height of the hedge.
13 The applicant states that he and his wife approached the respondents in 2007 regarding the pruning of the hedge. In July 2007 they asked the Community Justice Centre to approach the respondents in order to mediate the dispute. The respondents did not agree to mediation. The respondents' position. 14 The respondents' property is listed as a local heritage item in the Ku-ring-gai Planning Scheme Ordinance. The hedge grows along the majority of the southern boundary of the property. 15 A photograph taken from the development site in Killeaton Road looking back towards the respondent's property shows the timber dividing fence and the hedge (Exhibit 2). The fence was measured at the hearing and is 2.1 m in height. The extent of the applicant's property was marked on the photograph. Using the height of the fence as a guide, the height of the hedge in 2004, in the vicinity of the applicant's property, ranged from west to east from about 4.2m to 3.4 to about 4m. The photograph shows the hedge to be irregular in height but approximately 3.5m on average. 16 There was no suggestion by either party that the hedge has been trimmed between 2004 and the date of the application. 17 Apart from the 2004 photograph, the respondents tendered a record of the 'Ordinary Meeting of Council -13 May 2003'. Item 13 of this meeting related to the SEPP 5 proposal and the likely privacy and amenity impacts on the respondents' heritage listed property. Relevantly it records: The northern boundary of the site supports a 2.0 metre high timber paling fence which provides some screening from the adjoining property. Additionally a vegetation screen, which exceeds the height of the fence, exists on the northern side of the fence within the boundaries…Whilst it is unlikely that there will be any significantly adverse privacy impacts…it is appropriate to provide screening vegetation to soften the proposed development and provide additional screening.
Elsewhere an additional comment: …The development proposes a suitable setback to the northern boundary which will permit the incorporation of screen planting in addition to the 2.0 metre dividing fence and high vegetation screening to alleviate any privacy concerns. 18 The respondents contend that the council recognised the existence and importance of the hedge and envisaged additional screening that they say was to be imposed as a condition of consent.
The Act 19 Part 2A of the Act concerns high hedges that obstruct sunlight or views. This part applies to 2 or more trees planted so as to form a hedge and rise to a height of at least 2.5m above existing ground level (s 14A). 20 Section 14E provides the matters of which the Court must be satisfied before making an order. Relevantly, this section reads (in part):
(1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and
(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.
21 Section 14F lists the matters to be considered by the Court in the determining of an application.
Findings 22 The hedge complies with the requirements of S 14A. I am satisfied that the applicant has made a reasonable effort to reach agreement with the owners of the hedge and therefore s 14E(1) is satisfied. 23 It is necessary to determine whether the hedge is severely obstructing sunlight to the nominated windows of the applicant's dwelling and if the applicant's interests outweigh any impacts associated with interfering with the hedge. 24 Based on the measurements recorded on site, since 2004 the most vigorous plants in the hedge appear to have grown by about 1m - on average about 170mm per annum. Based on this average rate, the height of the tallest parts of the hedge in the vicinity of the applicant's property would have been about 4.5-4.3m high, much higher than that estimated by the applicant. 25 However, I am prepared to accept, on his uncontested oral evidence, that the applicant has lost winter sun from the part of the dwelling in which he and his wife spend most of their time.
26 Typical planning controls for building developments generally require 3 hours of sunlight to living areas and private open space for at least 50% of their respective areas on 22nd June between 9.00am and 3.00pm. The living areas are oriented to the north. The applicant's property was approved as a SEPP 5 development. Whilst the conditions of consent were not tendered, it is assumed that solar access was a consideration in the design and approval process. 27 The sun is lowest in the sky in winter and I am satisfied that the increase in height of the hedge is enough to have caused a severe obstruction to sunlight to the windows on the northern side of the dwelling in particular. Therefore as s 14(2)(a)(i) is satisfied, s 14(2)(b) must be considered. This requires consideration of the matters listed in s 14F. 28 The relevant clauses under s 14F are: (a) The hedge is wholly located on the respondents' property.
(b) The trees existed before the applicant's dwelling was constructed.
(c) The trees were in excess of 2.5m when the applicant owned and occupied the land.
(d) Whilst the respondents' property is listed as a local heritage item no evidence was tendered as to what limitations the Heritage Act 1977 or the Ku-ring-gai Planning Scheme Ordinance may impose on any action to reduce the height of the hedge.
(e) Again, whilst the conditions of consent of the applicant's property were not tendered in evidence, exhibit 3, the minutes of the council meeting imply that vegetation screening was required to supplement the existing fence and hedge.
(f) There is no evidence that the hedge is of any heritage significance. The heritage listing of the respondents' property is not detailed.
(h) The hedge contributes to the scenic value of the land on which it is growing.
(i) The hedge can be viewed from the street as well as the adjoining properties and thus it has some value to public amenity.
(k) Photinia is a plant that responds well to moderate pruning and is a plant commonly used for hedging. This particular hedge extends the full length of the respondents' property however, it is quite uneven in its growth. The plants at the eastern and western extremities of the applicant's property are noticeably taller than the majority of plants making up the hedge. Similarly, there are some plants in the hedge that are below the average height. It is not a very formal and highly maintained hedge. Therefore an order to reduce some elements of the hedge will not create a visually unacceptable impact that would destroy its integrity.
(l) The hedge contributes to the respondents' privacy, it is an important element in the landscape design of their garden and contributes to the amenity of their property. However, some reduction in height of the hedge will not significantly adversely affect either the respondents' privacy or amenity.
(m) The translucent polycarbonate awning is unlikely to have a significant impact on the obstruction of winter sun.
(n) The applicant has sought to resolve the matter.
(o) The applicant contends that no sun enters the windows and doors from end of May to late August, however it is noted that no shadow diagrams are provided.
(p) The hedge is an evergreen species. 29 On balance I find that the loss of sunlight to the applicant's dwelling outweighs any negative impact on the hedge or the respondents and as a result, s 14F(2)(b) is satisfied. Therefore the necessary jurisdictional tests are met and the Court may make an order under s 14D. 30 I consider some reduction in the height of parts of the hedge to be justified. The work should be undertaken in a way that achieves an acceptable aesthetic outcome and it will involve some reduction in the height of the hedge beyond the immediate bounds of the applicant's property. A horticulturist with appropriate skills and knowledge should have little difficulty achieving such an acceptable outcome. I consider that as the benefit goes entirely to the applicant, some financial contribution to the initial pruning costs is also justified. 31 Therefore on the basis of the forgoing, the Orders of the Court are: 1. The application to prune the hedge is upheld.
J 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.
Tonoli
Rappo
CITATION : Tonoli v Rappo [2010] NSWLEC 1320