Land and Environment Court New South Wales

• Medium Neutral Citation: Johnson & anor v Shadbolt & anor [2014] NSWLEC 1008
• Hearing dates: 16 January 2014
• Decision date: 17 January 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

See paragraph [24]

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; privacy issues
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: J A & C R Johnson (Applicants); C J Shadbolt & E L Hughes (Respondents)
• Representation: Applicants: JA & CR Johnson (Litigants in person); Respondents: Mr R Baxter (Solicitor); Respondents: Russell J Baxter
• File Number(s): 20744 of 2013

Judgment

1 COMMISSIONER: The applicants have lived on their property in Balgowlah Heights since 1987. Since 2005 they contend that sunlight to the north facing windows of their family room has been severely obstructed by a row of Leyland Cypress growing along the southern boundary of the adjoining property to the north.

2 The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders to restore that sunlight by requiring the current owners of the adjoining property to annually prune the trees to a height of 3.5m.

3 The respondents purchased their property in December 2011 and moved into it in December 2012. They submit that a significant reason for their decision to purchase the property was the presence of an established hedge and the privacy it afforded their dwelling and backyard pool.

4 In the alternative, the respondents would agree to reduce the trees to a height of 5.5m as this height would maintain their privacy by preventing overlooking from the first floor of the applicants' dwelling.

5 In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. The first is whether the trees are planted so as to form a hedge.

6 It is common ground that the row of Leyland Cypress trees is planted so as to form a hedge. As it is approximately 5.8m high, it meets the requirements of s 14A(1).

7 The application concerns the row of 23 Leyland Cypress along the southern boundary of the respondents' property and not the extension of that hedge growing along the western boundary. Therefore the return portion of the hedge will not be considered.

8 The next relevant jurisdictional test is 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 If s 14E(2)(a)(i) is satisfied, determination of s 14E(2)(b) requires consideration of relevant matters under s 14F. If s 14E(2) is found in the applicants' favour, the Court's powers under s 14D are engaged to make any orders it thinks fit in the circumstances.

10 The nominated windows are two north-facing ground floor windows of the family room. The applicants contend that they receive little to no sun to these windows three months either side of the winter solstice.

11 The applicants engaged an appropriate expert to prepare shadow diagrams for each hour from 9.00am until 3.00pm at the winter solstice (21 June). These diagrams show the shadows cast by the Leyland Cypress at 6.0m, the approximate height in September 2013, and at 3.5m being the proposed height. The diagrams also show the shadows cast by a Jacaranda and two palms growing in the respondents' back garden as well as shading by the fence and other structures.

12 The shadow diagrams show the windows in question to be almost completely shaded by the trees at 6m for each of the nominated hours. The modelled trees show small amounts of what could be dappled light to the upper parts of the windows. The diagrams show a negligible to minor impact of the Jacaranda and the palms.

13 A photograph taken on 12 June 2013 at 12.00pm (Exhibit C) shows the hedge shading the northern wall of the applicants' dwelling to the floor level of the first floor. The shadows of the jacaranda and the palms can be seen above that height. There are flecks of sunlight visible on the walls and windows.

14 With the trees modelled at 3.5m, the diagrams show the windows receiving full sunlight at all nominated times. The shadows are well below the bottom sill from 11.00am until 2.00pm.

15 On the basis of the evidence of the shadow diagrams and the photograph, I am satisfied that the respondents' Leyland Cypress trees severely obstruct sunlight to the applicants' nominated windows. As s 14E(2)(a)(i) is met, I must consider the balancing of interests inherent in s 14E(2)(b) and therefore the relevant discretionary matters in s 14F.

16 The relevant clauses in s 14F are:

(a) The trees are planted close to the fence that divides the properties. The fence and the applicants' dwelling are separated by a driveway about 4m wide under which is a large sewer main.

(b)(c) The trees were planted in 2005, 18 years after the applicants purchased their property and 11 years after they extended the rear of their dwelling. The trees have grown to their current height during that time albeit with some pruning by previous owners of the respondents' property and more recent pruning by the respondents.

(e) The applicants tendered landscape plans and conditions of consent for Development Application DA472/05 for alterations and additions to the dwelling now owned by the respondents. The landscape plans indicate a hedge of Eleocarpus reticulatus (Blueberry Ash) along the southern and south-western fence lines. Condition ANS01 requires "screening planting along the rear southern boundary, plants to reach a mature height of 3m..". The applicants contend that the Leylands are not in accordance with the consent and that the council intended 3m to be the maximum height. The respondents could not comment, as they did not own the property at that time. In my view little weight can be given to this contention as 3m could also be interpreted as a minimum height requirement in order to achieve a degree of privacy.

(k) Neither party engaged an arborist to provide an opinion. With the arboricultural expertise I bring to the Court I consider that the species is tolerant of pruning and at their current diameter, should it be ordered, pruning to 3.5m would not unduly stress the trees. The respondents raised the possibility of creating a bevelled edge on the applicants' side so as to increase sunlight to that property but maintain privacy on their own side. However, they are reluctant to carry this out because of the extra cost it would entail. From an arboricultural perspective, that style of pruning is achievable with this species.

(l) The respondents are addiment that the trees be no lower than 5.5m so that their privacy is retained. They are most concerned about privacy to a bedroom in a single storey extension beside the pool located relatively close to the hedge as well as privacy to the pool and two first floor bedrooms at the rear of the dwelling.

(m) Apart from the Leyland hedge, there are two Bangalow Palms and one large Jacaranda in the respondents' rear yard. The palms are planted towards the centre of the hedge and have grown above it. At the rear of the adjoining property to the west of the respondents' land, which also adjoins the applicants' property, is a row of bamboo and a tall Callistemon salignus. The shadow diagrams show the impact of the Jacaranda and the palms but do not show the impact of the Callistemon. In my opinion, given the location of these trees, these plants are unlikely to have a significant impact on the nominated windows.

(n) The respondents have recently pruned the trees but not to the extent sought by the applicants.

(o) The hours of sunlight lost are covered elsewhere.

(p) The Leyland Cypress trees are evergreen.

(r) The sunlight is obstructed to windows of the family room.

(s) The parties' properties are located in a residential area in which two-storey detached dwellings are common. The topography of this part of Balgowlah Heights is gently sloping. There are other nearby dwellings and residential flat buildings that overlook parts of both properties. The first floor windows of the applicants' dwelling from which overlooking is possible, are a smallish bedroom window, a window of the associated walk-in robe, and two windows of the associated ensuite bathroom.

Findings

17 Having had the benefit of the site inspection, which included an inspection from the upper floor rooms of each party's dwelling, I am satisfied that some additional pruning is justified.

18 While the respondents are concerned about privacy, I note the observations I made in (s) above that the properties are overlooked by a number of other dwellings. The first floor windows of the applicants' dwelling are windows of rooms that also require privacy and which are used for limited periods of the day. There is no direct viewing of the respondents' pool and bedrooms from the applicants' ground floor family room. The respondents' bedrooms all have blinds or curtains.

19 The respondents have offered to further reduce the hedge to 5.5m however this would make no material difference to the amount of sunlight received by the nominated windows.

20 The applicants have nominated a height of 3.5m but during the hearing considered that a height of 4.25m would improve the amount of sunlight they receive in mid winter. In my opinion 4.2m is a reasonable compromise as the shadow diagrams show that more than adequate sunlight is received at 3.5m. I see no reason to impose orders requiring a bevelled edge.

21 The applicants have sought orders for the pruning to be carried out on an annual basis between 15 April and 15 May. This is consistent with other orders made by the Court in similar circumstances. This enables sunlight during the winter months with the new growth of this quite rapidly growing species providing screening during the warmer months when the pool is more likely to be used. The orders will include this time frame.

22 As the land slopes down from west to east, the finished level of the hedge is to be based on a height of 4.2m for the Leyland Cypress closest to the tallest palm tree at the rear of the respondents' property (the palm to which tape was attached at the hearing). The 4.2 m is to be measured from ground level at the base of the palm. This means that the trees to the west will be less than 4.2m and the trees to the east of the palm taller than 4.2m. Setting this level retains a level top of the hedge. No orders will be made for any pruning of the western return of this hedge and the height at which that section is pruned is a matter for the respondents.

23 As is the Court's practice in these matters, orders will be made requiring the applicants to provide all reasonable and necessary access for the purpose of quoting and or the carrying out of the pruning. In this matter, given the proximity of the applicants' driveway to the trees, it may be easier and therefore cheaper for the arborist/horticulturalist to set up their scaffold on the driveway rather than in the respondents' garden.

Orders

24 Therefore, as a consequence of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) The respondents are to engage and pay for an AQF level 3 arborist or horticulturalist with appropriate insurance cover, to prune the Leyland Cypress trees growing along the southern boundary of the respondents' property in accordance with paragraph [22] of this judgment.

(3) The work in (2) is to be carried out in accordance with the general provisions of AS4373: 2007 Pruning of Amenity Trees and with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Until the trees are removed, the work in (2) is to be carried out annually between 15 April and 15 May each year commencing in 2014.

(5) The applicants are to provide all necessary access for the purpose of quoting, and if required, the safe and efficient carrying out of the works in (2) on at least two working days notice.

______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 17 January 2014