Land and Environment Court New South Wales

• Medium Neutral Citation: Ireson & anor v Kelly and anor [2013] NSWLEC 1008
• Hearing dates: 15 January 2013
• Decision date: 15 January 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge - obstruction of sunlight and views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: S & C Ireson (Applicants); R & P Kelly (Respondents)
• Representation: Applicants: S & C Ireson (Litigants in person); Respondents: R and P Kelly (Litigants in person)
• File Number(s): 20965 of 2012

Judgment

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

1 COMMISSIONER: The applicants in these proceedings are seeking orders for the pruning of trees they say are obstructing sunlight to, and views from, their property. They have made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) against the owners of those trees. The properties are located in Castle Cove.

Background

2 The applicants contend that when they purchased their property just over three years ago, they were able to see the ridge capping of the respondents' house and the water of Middle Harbour beyond that. Their position is that the trees have grown to a height that now obscures those views. They seek orders for the trees to be pruned by 150 - 300mm in order to restore the views they say they had when they purchased their property.

3 The respondents do not wish to prune the trees any lower than they currently are as they value the trees for the privacy they afford their property, in particular the main bedroom located at the rear of their dwelling. The respondents moved into their dwelling about four years ago and state that when they did, the applicants' property was somewhat obscured by vegetation in the applicants' garden. This vegetation gave them some privacy from overlooking as did low branches on a Norfolk Island Pine growing at the rear of the property to the south which also adjoins the applicants' property. The respondents also consider that the original layout of the ground floor of the applicants' dwelling (now altered by the applicants) was such that more light was available to the part now in contention.

4 When the applicants purchased their property they obtained permission from Willoughby Council to remove much of the vegetation from their block as well as the removal of low branches from the other adjoining property.

5 It is accepted that the current situation for both parties is somewhat different to the conditions that existed when each of them purchased their properties.

Jurisdictional tests

6 In applications under Part 2A there are a number of jurisdictional tests that must be satisfied. The first question to be answered is whether the trees form a hedge for the purpose of the Act.

7 The trees are a row of 16 Photinia species, a plant commonly grown for hedging purposes. These existed when the respondents moved in. The trees are planted along the rear or western boundary of the respondents' property. The land slopes upwards from south to north and the height of the trees increases. The respondents stated that they have pruned the trees in question about four times in the time they have owned their property.

8 At the hearing the height of several trees was measured from within the respondents' property. The height of T2 was about 3.2m, T6 (to the north) about 3.5m and T15 about 4.1m.

9 There is no dispute between the parties that the trees are planted so as to form a hedge and continue to do so. The trees exceed 2.5m in height. I agree that s 14A(1) is satisfied and therefore Part 2A applies to these trees.

10 The next relevant jurisdictional 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.

Sunlight

11 Dealing first with sunlight, the applicants claim that full-sized window/glass doors on the ground floor of their dwelling - nominated as W2, lose up to four hours of sunlight per day, mostly morning sun, as a consequence of the respondents' trees.

12 The rear of the applicants' two-storey dwelling faces east. The room in question is at the north-eastern corner of the ground floor and is currently used as an office but will shortly become a bedroom.

13 The window adjoins a concrete terrace which is about two metres wide and above which is the balcony of the upper storey deck. The upper deck is supported by a double brick column at its north-eastern corner.

14 The applicants did not provide any shadow diagrams but rely on the layout of their property, the aspect of the window and the proximity of the trees to W2 to prove their case.

15 The timber dividing fence and the trees behind it are about one metre from the outer edge of the supporting column; therefore, at their closest, the trees are about three metres from the window. The distance between the trees and the window increases in both directions. The slope of the land to the north of the column increases more steeply and is relatively higher than the level of the ground floor that is excavated into the slope.

Findings - sunlight

16 In the absence of shadow diagrams that may prove the matter one way or another, I am satisfied that the room currently receives some sunlight, but I am not satisfied that the respondents' trees are severely obstructing sunlight to W2. The applicants admitted this during the hearing but they said they are also concerned about future obstructions.

17 Given the aspect of the window and its location beneath the upper balcony, I am not convinced that this window could receive sunlight for any lengthy period of time except for early morning. As the sun moves through the day the angle of it to the window would become very acute and so little sunlight would penetrate W2. The balcony above would also block sunlight.

18 In regards to future obstruction should the trees grow, s 14E(2)(a)(i) does not apply to future obstructions but simply to the obstruction at the time of the hearing.

19 Therefore, as s 14E(2)(a)(i) is not satisfied, the Court has no jurisdiction to proceed and the application with respect to sunlight is dismissed.

Views

20 The applicants identify 12 viewing locations. The first 6 are associated with W1 and W2, and I assume, the adjoining terrace. The remaining points are from the garden in the northern corner of their property (also referred to in their application as an entertainment area).

21 Dealing with the garden first, the Act does not apply to obstruction of views from gardens; only views from a dwelling situated on an applicant's land are considered.

22 At the hearing, the views from W1 and W2 were observed.

23 W1 identifies the full sized window and glass door of a downstairs family room. From a standing position within this room I observed the water of Middle Harbour and its distant shorelines. The suburb of Killarney Heights could be seen to the east-north-east and Seaforth to the east. The view is constrained to the east-south-east by large trees growing on the property to the south of the respondents' property. [For the record, I note that I am below average height and therefore someone taller than me would have a better view.]

24 As stated previously, the applicants contend that when they purchased their property they could see the ridge cap of the respondents' dwelling and therefore more of Middle Harbour.

25 Through W2, from a standing position, the view of the water is more obstructed by the respondents' trees but it can be partly seen through the trees.

Findings - views

26 In determining the severity of the obstruction of a view, the Court has often used several of the steps outlined in the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140.

27 In this case, the view is partly of water and the land/water interface - a view considered by many people to be more valuable and desirable than a view of land.

28 The scale of the impact of the obstruction is given in Tenacity as ranging from negligible to minor to moderate to severe and ultimately to devastating. Therefore the Act, in using the word 'severe', sets a high bar.

29 In considering the overall severity of the obstruction, the planning principle also considers the use of the room from which the view is seen as well as the views available from elsewhere in the applicants' dwelling.

30 In this regard, W2 is currently the window of an office and eventually this room will become a bedroom. The desks in the office are generally set up along the northern wall and from a seated position the view would be primarily of the fence. Bedrooms are given less weight than living areas as they are principally used at night.

31 The applicants' primary living area is located on the upper floor. The view from the dining/living room to Middle Harbour and beyond is unobscured by the respondents' trees.

32 From a standing position within the dining room and close to the windows I observed that the current height of the Photinias screens the window of the respondents' rear bedroom however, it would be easily overlooked by anyone standing on the applicants' rear upper deck.

33 Therefore in considering the application in regards to views, I am not satisfied that there is a severe obstruction of the desired views from W1. With respect to W2, even if I did find that there was a severe obstruction of the view (which I don't), in considering the discretionary matters in s 14F in order to determine the balancing of interests in s 14E(2)(b), I find that that the applicants' interests in improving their view from this room do not outweigh the respondents' needs for privacy. As such, no orders would be made for any interference with any of the trees.

34 In conclusion, the Orders of the Court are:

(1) The application in its entirety is dismissed.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 15 January 2013