COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Leyland Cypress hedge growing on the respondent's Kellyville property. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant's dwelling.
As usual in these matters, the hearing commenced on site outside the respondent's property. I knocked on the door and rang the doorbell three times; there was no response. I am satisfied on the material contained within the Court file that the respondent was appropriately served with both the Tree Dispute Application and the Directions of the Court. On this basis, the matter proceeded without the respondent.
In applications made under Part 2A of the Act, there are a number of jurisdictional matters that must be sequentially satisfied in order to engage the Court's powers to make orders under s 14D.
The first of these is whether the 18 trees the subject of the application are planted so as to form a hedge and which rise to a height of at least 2.5m (s 14A(1)). The trees in question were easily seen from the applicant's property. I am satisfied on the basis of species, spacing and arrangement that the trees are planted so as to form a hedge; they are approximately 10m tall. Therefore s 14A(1) is met.
The next jurisdictional test, in s 14E(1)(a), is whether the applicant has made a reasonable effort to reach an agreement with the owner of the land on which the trees are situated.
An uncontested statement in the application claim form indicates that the applicant brought the problem to the owner/occupant of the respondent's property on several occasions; these attempts also included the provision of an arborist's report commissioned by the applicant. On this basis I am satisfied that s 14E(1)(a) is met.
The key test in applications made under Part 2A is found in 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.
While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
The Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc. and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Perhaps the most applicable synonyms for 'severe' in Part 2A matters might be the words harsh or extreme. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application.
The applicant has nominated nine windows at the rear of his dwelling which he contends are severely affected by the respondent's trees. Windows 1-7 are on the ground floor; the others are on the first floor.
Window 1 Generally north-facing Dining room
Window 2 West facing Living room
Window 3 North-west facing "
Window 4 Generally north-facing "
Window 5 West facing "
Window 6 Generally north-facing "
Window 7 Generally north-facing "
Window 8 Generally north-facing Bedroom
Window 9 Generally north-facing "
The respondent's property is to the north-west of the applicant's property; the common boundary is approximately one third of the width of the respondent's rear boundary, at the eastern end. The Leyland Cypress hedge extends around the perimeter of the respondent's backyard from the rear setback of the dwelling along both side boundaries and the rear boundary. The respondent's hedge adjoins the side or rear boundaries of four properties.
During the site inspection I noted two Sapium sebiferum (Chinese Tallow Trees) growing in the north-western corner of the applicant's property and other trees along the rear and eastern boundaries of the applicants' property and along the common boundaries of those other adjoining properties. The Chinese Tallow trees are deciduous and the other trees are evergreen; none of the other trees are as tall as the Leyland Cypress.
The applicant contends that windows 1-4 are 100% shaded by the trees during winter and 50% shaded during spring and autumn; windows 5-7 are shaded 75% during winter and 25% during spring and autumn; and the upstairs windows are 50% shaded during winter.
The applicant's supplementary evidence (Exhibit B) includes a number of photographs showing the height of the trees in 2005 and 2006 - approximately 3-4m tall, and their height and impact on the applicant's dwelling in photographs taken at about 3.00 pm on 6 September 2015. The 2015 photographs show all except the part of the eastern-most window on the ground floor in full shade at that time of the day; the upper level windows are in part shade.
The application claim form includes an Arborist's report prepared in September 2015 by Ms Bernadette Hunt of Apex Tree & Garden Experts. The report appears to be based on statements made by the applicant in regards to his concerns about the trees. The arborist notes that 9 of the trees detrimentally affect the applicant's property; the rear of the applicant's dwelling being about 8m from the nearest trees. She observes that two of the trunks are contacting the dividing fence. Ms Hunt recommends the trees be reduced to about 5m, being about 50% of their current height, and then maintained at that height annually. The reason for nominating this height is not given. She also considers that the sides of the trees should be trimmed to encourage foliage density to limit view lines between the houses. [Ms Hunt also notes that residents are permitted to prune overhanging branches however the basis of that statement is not provided; the permissibility of such pruning should always be sought from the local council.]
Although the arborist recommends pruning to a height of 5m, the applicant is concerned that this height will be insufficient to provide adequate winter sun to his dwelling and he maintains his position that the trees should be removed.
[2]
Consideration
Given the location of the respondent's trees relative to the applicant's dwelling, the trees are most likely to obstruct sunlight, particularly in winter, from about midday to late afternoon.
The applicant has not provided any shadow diagrams to demonstrate the impacts of the trees and the effects of self-shading by the dwelling or shading by other trees. On the face of it, it would appear that there is certainly some obstruction, however given the limited evidence before me I am unable to determine, to the level of certainty required by s 14E(2)(a)(i), which, if any, of the respondent's trees are severely obstructing sunlight to windows of the applicant's dwelling. However, if I am wrong in this finding in regards to s 14E(2)(a)(i) I will consider the balancing of interests inherent in s 14E(2)(b). This requires consideration of relevant matters in s 14F of the Act. The following matters apply.
The trees are growing close to the common boundary between the parties' properties (s 14F(a)) and were planted after the applicant purchased his dwelling and have grown to their current height since that time (s 14F(b)(c)). As the respondent has not filed any evidence it is unknown whether the planting was required by a condition of development consent (s 14F(e)).
Pruning to the height suggested by the arborist is unlikely to significantly affect the heath of the trees (s 14F(k)), however, absent any shadow diagrams which might demonstrate a height that would satisfy the applicant's concerns, this is academic.
As stated above, the respondent's property adjoins four others. The trees are likely to provide privacy for the respondent's property and may also provide privacy for other adjoining neighbours; most if not all adjoining properties have two storey dwellings on them. While the applicant is unconcerned about privacy, this may not be the case for other neighbours (s 14F(l)).
Section 14F(m) requires consideration of things other than the respondent's trees that may obstruct sunlight to the applicant's windows. It is likely that the applicant's own Chinese Tallow trees obstruct some sunlight in autumn and spring when they are in leaf. It is also possible that W1, the westernmost window may be shaded for most of the morning, at any time of the year, by the applicant's dwelling. Windows 2, 3, and 5 will also be shaded by the dwelling until the afternoon. Windows 6 and 7 are likely to be shaded on winter mornings by trees and shrubs along the common eastern boundary.
In the absence of shadow diagrams or a series of date and time stamped photographs, the amount and number of hours per day, of any sunlight that is lost as a consequence of the respondent's trees, and not from other possible obstructions, is unknown (s 14F(o)).
Having considered the evidence and the matters required by s 14F, and while I acknowledge the applicant's frustration with the unresponsiveness of the respondent, I cannot make the orders the applicant seeks; that is the removal of the trees. Similarly the evidence is insufficient to order, with the confidence required by s 14E(2), any pruning of the trees.
If the circumstances change, a second application can be made (see Deville & anor v Frith & anor [2014] NSWLEC 1002).
Therefore, the Orders of the Court are:
1. The application is dismissed.
2. Exhibit B is returned.
Judy Fakes
Commissioner of the Court
[3]
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Decision last updated: 26 February 2016