Land and Environment Court New South Wales

• Medium Neutral Citation: Brindle and anor v Woznitza and anor [2013] NSWLEC 1005
• Hearing dates: 10 January 2013
• Decision date: 10 January 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal of two trees ordered

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr D Brindle and Ms A Nassif (Applicants); Mr U and Mrs G Woznitza (Respondents)
• Representation: Applicant: Mr D Brindle (Litigant in person); Respondents: Mr U and Mrs G Woznitza (Litigants in person)
• File Number(s): 21023 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Wentworth Falls against the owners of a row of trees growing on an adjoining boundary.

2 The applicants contend that the trees severely obstruct sunlight to 10 nominated windows of their dwelling. They seek general orders for the "taking of specified action to remedy the obstruction of sunlight" and "specified action to maintain a tree or trees at a certain height, width or shape". The applicants do not specify the actions but are content with either removal or pruning of the trees at the respondents' expense.

3 The respondents do not object in principle to either removing the trees or to crown lifting them to a height of 5 m. In a letter to the applicants they propose a staged removal and replacement program with the applicants to pay for the removal of the trees and the respondents to replant and maintain the trees at a height that enables solar access for the applicants and maintains the respondents' privacy. The applicants do not agree to this proposal.

4 In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court's jurisdiction to make orders is engaged.

5 The first of these tests is satisfaction of s 14A(1); that is, are the trees the subject of the application a hedge for the purpose of the Act?

6 The diagram in the application claim form is confusing as it seems to include a number of deciduous birch and alder trees that are not discussed elsewhere in the claim form. At the on-site hearing it was clarified that the application applies to 32 Leyland Cypress trees growing on the respondents' side of the dividing fence starting at a point behind the respondents' shed and extending to the rear of their property. This equates to approximately tree 11 on the diagram.

7 There is no dispute between the parties that the row of Leyland Cypress forms a hedge; the spacing, arrangement and species are typical of a hedge. The trees are approximately 18 m tall. Therefore s 14A(1) is satisfied.

8 The next relevant test is found in s 14E(2). This 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.

9 That is, the Act requires the obstruction of sunlight to be severe and to be caused by any of the trees. This must be applied to each of the nominated windows.

10 The nominated windows are summarised in the table below.

Level	Window	Room	Aspect	Other possible obstructions	Hours of sunlight lost*
Ground	W1	Lounge	NE	2 m verandah	6/6
"	W2	Dining	NE		5/6
"	W3	Dining	SE	3m verandah	6/6
"	W4	Kitchen	SE	4m verandah	6/6
"	W5	Bathroom	SE	4m verandah	6/6
"	W6	Bathroom	SE	4m verandah	6/6
Upper	W7	Bedroom	NE	Narrow window	4.5/6
"	W8	Bedroom	NE	Narrow window	4.5/6
"	W9	Bathroom	SE		6/6
"	W10	Hall/ void	SE		6/6

* hours lost out of 6 between sunrise and 12:00 midday on 23/9/2012

11 The applicants did not provide any shadow diagrams but provided photographs taken at various times on 23/9/12.

12 In determining the severity of the obstruction to sunlight as a consequence of the trees, it is relevant to consider some of the matters raised in s 14F of the Act.

13 The trees are located close to the boundary fence between the parties' properties. The trees were present when the respondents bought their property. Although the applicants state in their claim form that the trees were 5-6 metres high when they purchased their land in 2001, photographs taken at the time indicate that the trees were probably at least 10 metres tall, and taller again when they constructed their dwelling in 2003/2004. The north-eastern side of the dwelling is approximately 6m to the southwest of the trees. Therefore, when the applicants purchased, designed and constructed their dwelling, the trees would have limited the amount of sunlight to any windows other than those on the north-western side of the dwelling.

14 The applicants' dwelling is oriented to the street and faces northwest. The living areas occupy the eastern portion of the ground floor. Apart from W2, all of the ground floor windows adjoin an external deck with covered verandah that would limit the amount of sunlight to those windows. The majority of the windows face the southeast and therefore could not ordinarily be expected to receive anything more than early morning sun.

15 In applications concerning obstruction of sunlight, the Court has often considered the typical development controls for solar access for new dwellings. These controls generally require solar access to at least 50% of the area of living room windows for at least three hours between 9.00 am and 3.00 pm on 22 June (the shortest day), as winter sun is generally desirable. These controls generally do not consider solar access to bedroom windows given the nature of their use.

16 In this matter, I find that the only window to which sunlight is severely obstructed as a consequence of the respondents' trees is W2. In this regard, I consider s 14E(2)(a)(i) to be satisfied.

17 However, before making orders under s 14D, I must consider the balancing of interests required by s 14E(2)(b). While I am satisfied that the trees have grown since the applicants have owned their property and less sunlight reaches the living/ dining room the amount of sunlight reaching the dwelling was already constrained by the height of the trees when they purchased the land and they chose the design and location of their dwelling of their dwelling. The trees have both public and private amenity value. Notwithstanding these facts, I have determined that it is appropriate to order the removal of two of the largest trees closest to the north-eastern side of the applicants' dwelling. This will improve solar access and retain the integrity of the hedge as a privacy screen.

18 The trees to be removed are the third and sixth Leyland Cypress from the northwestern corner of the respondents' shed. Given the narrow area in which they are growing and the difficult access, orders will be made to enable the removal of the trees from the applicants' property.

19 It is usual to consider pruning options before recommending removal. In this regard, with the expertise I bring to the Court, I concur with the applicants' arborist that reducing the trees to 10 m (the height they were when the applicants purchased the land) would be detrimental to their health and appearance. Crown lifting the row of trees (as suggested by the respondents) would reduce their value as a screen and do little for solar access.

20 Given the facts in [17] I consider that the applicants should pay 40% of the cost of the tree removal.

21 Therefore, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 120 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove (to ground level) the two trees detailed in paragraph [18] of this judgment.

(3) The work in order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The applicants are to provide access for the work to be carried out from their property with at least two working days notice. Access must also be provided for the purpose of quoting.

(5) Within the time frame, the respondents are to obtain three quotes for the work. Should they wish to, the applicants may also obtain quotes. The parties are to exchange quotes and agree on the nominated contractor.

(6) Within 7 days of the receipt of a tax invoice for the completed work, the applicants are to reimburse the respondents 40% of the cost of the removal of the two trees.

___________________

J Fakes

Commissioner of the Court

Decision last updated: 11 January 2013