Land and Environment Court New South Wales

• Medium Neutral Citation: Devile & anor v Frith & anor [2014] NSWLEC 1002
• Hearing dates: 9 January 2014
• Decision date: 14 January 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part see paragraph [45]

• Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of sunlight
• Legislation Cited: Interpretation Act 1987; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Devile v Frith [2011] NSWLEC 1250; Hinde v Anderson & anor [2009] NSWLEC 1148; McDougall v Philip [2011] NSWLEC 1280
• Category: Principal judgment
• Parties: S & P Devile (Applicants); D & R Frith (Respondents)
• Representation: Applicants: S & P Devile (Litigants in person); Respondents: D & R Frith (Litigants in person)
• File Number(s): 20748 of 2013

Judgment

1 COMMISSIONER: The applicants in this matter reside on a battle-axe block to the south of the respondents' property in Winmalee. They purchased their land in 2004 and built their house in 2005.

2 At the time of purchase, an established row of Leyland Cypress trees grew along the southern boundary of the respondents' property. A photograph taken from the applicants' property in September 2004 shows the trees prior to the construction of the applicants' dwelling. The trees are planted in two sections - to the east and west of the respondents' dwelling. The trees are estimated to have been between 8-10m high in 2004.

3 The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning and maintenance of the Leyland Cypress trees to 9m on the basis that the trees are severely obstructing sunlight to a number of windows of their dwelling.

4 They are also seeking orders for the pruning and maintenance of a row of bamboo planted between the sections of Cypresses to 6m for the same reason.

5 This is the second application the applicants have made under Part 2A of the Act. In Devile v Frith [2011] NSWLEC 1250, Hewett AC dismissed the application on the basis that the undesirability of interfering with the trees outweighed the applicants' interests in having the obstruction to sunlight removed.

6 The respondents are of the opinion that the current application should be dismissed as there is no new evidence to warrant the orders the applicants seek. In their view, the respondents contend the shading of the applicants' dwelling is a consequence of its design and siting.

7 In applications under Part 2A of the Act, there are a number of jurisdictional tests that must be sequentially satisfied.

8 It is common ground that the trees in question are planted so as to form a hedge and rise to a height of more that 2.5m, thus satisfying s 14A(1).

9 In my view, there are three hedges, Hedge 1 being the eastern row of Leylands (trees 1-18), Hedge 2 being the bamboo, and Hedge 3 (trees 19-25) comprising the western row of Leyland Cypress.

10 The next relevant jurisdictional test is satisfaction of 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.

11 If the jurisdictional tests are satisfied, the Court's powers under s 14D of the Act to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction to the severe obstruction of sunlight to a window of a dwelling situated on the applicants' land.

12 The applicants have nominated nine windows. Windows 1-3 are on the northern side of the dwelling and the other windows are on the eastern side.

13 Window 1 (W1) is a garage window, W2 - bedroom, W3 - bathroom, W4 - laundry, W5 & 6 - family room, W7 - kitchen, and W8 & 9 - lounge/dining room.

14 The applicants contend that the obstruction of sunlight has created cold, dark, damp and mouldy conditions in a number of rooms necessitating artificial heating and lighting and causing difficulties with drying clothes.

15 Both parties engaged appropriate experts to prepare shadow diagrams for the winter solstice. The diagrams show shadows cast by the trees at their current height (based on a recent survey) and at the proposed heights. The applicants also tendered photographs taken on 16 June 2013 of the shadows cast by the trees. The respondents' diagrams also include shadows cast by other vegetation as well as by the respondents' dwelling and associated structures.

16 The current height of the trees in Hedge 1 ranges from about 17-18.5m; Hedge 2 - about 7.5m and Hedge 3 - 13.5-14m.

17 The diagrams clearly show that the trees in Hedge 3 have no impact on sunlight to the nominated windows and therefore they are beyond the Court's jurisdiction.

18 By comparing the various shadow diagrams, the bamboo may obstruct mid-winter sun to W1 and W2 for about two hours in the early afternoon. For the remainder of the day, these windows are shaded by the respondents' dwelling or by some trees at the 9m height in Hedge 1 (being the agreed average height of the trees when the applicants purchased their land).

19 On this evidence I am not satisfied that any of the trees comprising hedge 1 or hedge 2, the bamboo, severely obstruct sunlight to these windows. Even if I found there to be a severe obstruction, given the use of the rooms as a garage and bedroom and the associated usual hours of occupancy, I would not be minded to make any orders for any intervention with the trees on the basis of these windows. That is, I find s 14E(2) has not been satisfied for W1 and W2.

20 In regards to W3 and W4, the applicants' shadow diagrams show that these windows would have received little if any direct sunlight in mid-winter as a consequence of the height of the trees when the dwelling was built. While this could be considered a severe obstruction of sunlight to these windows, for the following reasons I do not propose to make any orders for any intervention with the trees on this basis.

21 As considered in McDougall v Philip [2011] NSWLEC 1280, at [21]-[25] pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.

The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies.

The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act.

The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review.

22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006" undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force.]

a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

b) That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.

23 The discussion relating to Recommendation 9 [page 35] states in part that:

The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of the purchase.

24 The amended Act incorporates all of the recommendations made in the review.

25 Therefore, in regards to W3 and W4, pruning the trees to 9m would simply reinstate the status quo when the applicants purchased their land; the status quo being no direct sunlight in mid winter. While there may be less shading to other windows if the trees were pruned, these windows would receive no benefit and therefore there would be no utility in ordering any interference with the trees on this basis.

26 With respect to all of the nominated windows on the eastern side of the applicants' dwelling, the shadow diagrams indicate that by 1.00 pm at the winter solstice, the eastern façade is in full shade as a consequence of the eaves. The eaves start shading the tops of the windows at 12.00. The respondents' expert considers the façade to be in full shade by 12.45pm.

27 W5 and 6 are full-length windows of the family room; while not shown on the diagram, there are double glass doors between these windows. The definitions in s 3 of the Act include 'glass sliding doors' and 'any other similar thing' as a 'window' for the purpose of the Act. Therefore, I consider these doors can be included as windows of the family room.

28 In mid-winter these windows receive sun prior to and at 9.00am however, by 10.00 am some of the respondents' trees shade them. Assuming the trees in hedge 1 are evenly spaced, trees 1-9 probably cause the shading, that is the most easterly of the trees. Therefore, it appears that these windows lose about 3 hours of mid-winter morning sun.

29 The shadow diagrams show the kitchen window (W7) to be partly shaded by 11:00 am. Photograph SD5 in exhibit C shows the kitchen window (with the blind down) in full sun at 10.22 am on 15/6/13. SD7 taken at 11.33 am shows filtered sun and shading to the lower northern corner and the effect of the eaves on the top third. SD8 shows that, even absent the trees, the eaves fully shade the kitchen window by 12.19pm. Therefore this window appears to lose about one hour or so of full sun as a consequence of the easternmost trees.

30 Given the evidence, I am not satisfied that there is a severe obstruction of sunlight to the kitchen window caused by the respondents' trees.

31 W8 and W9 are similar windows to W5 and W6 and also have glass doors between them. SD8 taken at 12.19pm shows the top half of these windows shaded by the eaves and not affected by the trees. Photographs taken earlier in the day show the windows in full sun with the curtains drawn. While the shadow diagrams show these windows shaded by the trees at 1.00pm, the eaves would already shade them by that time. Therefore, there does not appear to be any severe obstruction of sunlight to these windows as a consequence of any of the respondents' trees.

32 Therefore, in regards to windows 7-9, I find that s 14E(2)(a)(i) is not satisfied and the Court has no jurisdiction to further consider these windows.

33 The question to be asked at this stage is whether any of the respondents' trees severely obstruct sunlight to windows 5 and 6. On the evidence of the shadow diagrams, I am satisfied that some of the respondents' trees are severely obstructing mid-winter morning sun to windows 5 and 6 and the glass doors between. As stated above, the trees most likely responsible are the nine or so easternmost trees of Hedge 1.

34 As s 14E(2)(a)(i) is satisfied for these trees, s 14E(2)(b) must be considered. This in turn requires consideration of relevant matters in s 14F. The relevant subclauses are:

(a) Trees 1-9 are the easternmost trees in hedge 1 and range in distance from 18 to 28 m away from windows 5 and 6. These trees are at the eastern end of the respondents' southern boundary. These trees directly adjoin a relatively undeveloped portion of the applicants' land that slopes down to a gully. Many remnant Eucalypts remain at the rear of the applicants' property and to the east of the respondents' property.

(b) The trees were well established prior to the applicants' purchase of their land and the construction of their dwelling.

(c) The trees were between 8-10 metres when the applicants purchased their land and have grown to their current height in that time.

(g) The respondents maintain that the trees are used by local wildlife.

(h)(l) The respondents value the trees for their contribution to the scenic value of their property and the amenity they provide with respect to privacy and screening. They are part of the design of their garden.

(i) The trees make a minor contribution to public amenity as part of the overall treed landscape character of the street and the vicinity - a mixture of native and exotic species.

(j) The respondents contend that the level changes associated with the construction of the applicants' dwelling significantly increased the flow of water onto their property. They submit that the trees in Hedge 1 are essential for using up that water thus maintaining the water table.

(k) Neither party engaged an arborist to provide independent expert evidence on the impact of pruning the trees to 9m therefore these comments are based on the expertise I bring to the Court. While Leyland Cypress trees are quite tolerant of pruning, reducing their height by 8-9m would most likely have an unacceptable impact on their health and possibly structure. However, a reduction of about 6m would be tolerable.

(m) As considered elsewhere, the eaves of the dwelling fully obstruct the windows by about 12.45pm on the shortest day. There is a tall eucalypt on the applicants' property close to these trees that would most likely have some impact on these windows but has not been shown on the shadow diagrams.

(n) The applicants stated that when they purchased their land they assumed that the respondents would prune the trees along their southern boundary in a similar fashion to the pruning carried out on the hedge at the front of the respondents' property. The applicants also maintain that they took account of the hedge in setting their dwelling back from the common boundary.

(o) The relevant windows lose about 3 hours of morning sun on the shortest day of the year but given their orientation would lose less at other times of the year.

(p) The trees in question are evergreen.

(r) The room to which the sunlight is obscured is the family room, said to be used by the applicants' children for watching television and playing and for drying of clothes.

(s) See discussion in [35]-[40] below.

35 The respondents' position is that the matter should not be re-considered as there is no new evidence. This is something raised in applications made pursuant to Part 2 of the Trees Act and considered in Hinde v Anderson & anor [2009] NSWLEC 1148.

36 As discussed in Hinde, a fresh application can only be made if circumstances have changed since the Court determined the earlier application. In a Part 2A application, it is reasonable to consider that the continued growth of a tree that has caused an obstruction of a view or of sunlight from or to a window that was previously unobscured would constitute changed circumstances.

37 In Devile v Frith [2011] NSWLEC 1250, the windows in contention were windows 1-4 and not the windows of the family room. No shadow diagrams were prepared for the previous hearing. In that judgment, Hewett AC at [35] considered that interfering with the trees to the extent sought by the applicants was undesirable and not supported for utility rooms. However, he flagged the possibility of considering pruning if the obstruction was to windows of living and family rooms.

38 After considering the competing interests of the applicants in seeking to remove the obstruction of sunlight to windows of the family room against those of the trees and thus the respondents, I consider that some pruning of trees 1-9 is warranted in order to restrain the obstruction, however not to the extent sought by the applicants.

39 The review of the Trees Act in 2010 established a mechanism by which some action could be sought to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling as a consequence of a neighbour's trees.

40 Whether or not the property was purchased before or after the insertion of Part 2A into the Act could also be considered under s 14F(s). The review of the Act determined there should be no right to obtain additional sunlight or a view. However whether there should be an expectation of 'freeze-framing' a landscape from the time of purchase should also be considered. The existence of a well-established hedge and the fact that trees grow should be taken into account when purchasing land or when planning and designing a dwelling. I also consider that the applicants made an unrealistic assumption that the respondents would prune the trees.

Conclusions and orders

41 In this matter I find that trees 1-9, being the easternmost Leyland Cypress trees as in existence at the date of the hearing, are to be reduced to a level determined by pruning tree 9 to a height of 11.5 m; this is because the land slopes to the east. Any part of tree 10 that overhangs Tree 9 is to be pruned. The trees are to be subsequently maintained at a level 500mm above the initial pruning height. While this will not fully restore the amount of sunlight the applicants may have received when they built their house, it should allow up to about two hours of additional sunlight to W6. Pruning the trees to this height will also be within the trees' tolerable limits.

42 Pruning is to take place annually in the month of April commencing in 2014 and continuing until the removal of the trees. The orders of the Court do not prevent the respondents from seeking permission from the council for any additional pruning (or removal) should they so wish.

43 In regards to who should pay, for the reasons outlined in [39] I consider the parties should share the cost of the initial pruning with subsequent maintenance to be at the respondents' expense.

44 As is the Court's usual practice, the applicants will be ordered to provide all reasonable access to their property for the purpose of quoting, and if necessary, for the safe and efficient carrying out of the works. For example, there may be easier access from the applicants' land. Similarly, any branches that fall onto the applicants' land during pruning will need to be retrieved.

45 Therefore, the Orders of the Court are:

(1) The application is upheld in part.

(2) The respondents are to obtain up to three quotes for the pruning of trees 1-9 being the easternmost Leyland Cypress trees growing along their southern boundary in accordance with paragraph [41] of this judgment.

(3) The cheapest quote is to be selected and the applicants are to be provided with a copy of each quote for their records. The respondents are to engage and pay for the nominated contractor.

(4) The work in [41] is to be commenced in April 2014 and then annually each April.

(5) The work is to be carried out by an AQF level 3 arborist in accordance with the general provisions of AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6) The applicants are to provide all reasonable access for the purpose of quoting and the safe and efficient carrying out of the works in [41] on at least 2 working days notice.

(7) Within 21 days of the receipt of a tax invoice for the completed initial pruning in April 2014, the applicants are to reimburse the respondents 50% of the cost of the pruning.

____________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 14 January 2014