Land and Environment Court New South Wales

• Medium Neutral Citation: Clancy v Bell & anor [2011] NSWLEC 1017
• Hearing dates: 7 February 2011
• Decision date: 07 February 2011
• Before: Fakes C

Decision

1. Application is dismissed.

• Catchwords: TREES [NEIGHBOURS]; hedge; obstruction of sunlight; shadow diagrams show no severe obstruction.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Land and Environment Court Act 1979
• Category: Principal judgment
• Parties: Mrs G Clancy (Applicant); Mr A Bell (Respondent); Mrs W Bell (Respondent)
• Representation: Solicitors: Mrs G Clancy [litigant in person] (Applicant); Mr D Leung [solicitor]; Antunes Lawyers and Advocates (Respondents)
• File Number(s): 10/20768

Judgment

1 This is an application pursuant to s14B Part 2 A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Cherrybrook against the owners of trees growing on an adjoining property.

2 The applicant is seeking the reduction of 11 trees to a height of 3.5m and for the trees to be maintained to control their height and width.

3 These orders are sought because the applicant contends that "all east rising sun is totally blocked" from her property. However, the applicant states that no windows are involved although 5 windows are nominated in the application form. Window 1 is on the south-eastern side of the applicant's property and the other 4 are on the southern elevation of the dwelling. All nominated windows face onto the front verandah of the applicant's property.

4 The applicant is also concerned that the trees are of excessive height and could cause damage to her property. With respect to this contention, the applicant did not make any application with respect to Part 2 of the Trees Act.

5 The trees are 11 xCupressocyparis leylandii 'Leighton Green' (Leyland Cypress) growing along a portion of the western boundary of the respondents' property. These trees adjoin another row of trees along the southern boundary fence and together they enclose the south-western corner of the respondents' property.

6 Tree 11 is the most northerly of the trees. The northern extremity of this tree is approximately 2m to the south of W1. Trees 9-11 are adjacent to the verandah and eastern side of the applicant's dwelling. The remainder of the trees adjoin the applicant's front garden. There is a distance of approximately 3m from the dividing fence to the applicant's dwelling.

7 In front of the verandah opposite windows W2 and W3 are several mature Camellias and a Viburnum that are almost up to the height of the eaves. Another mature Camellia is growing in front of the verandah between windows 4 and 5.

8 The respondents value the trees for the privacy they afford, particularly from the elevated western end of the street. Mr Leung, solicitor for the respondents also submits that the trees protect the house from the western sun and thus reduce the need for air conditioning and that the trees block the glare of headlights from traffic entering the street from the west.

Jurisdictional tests and the evidence

9 The trees subject to the application meet the jurisdictional test under s 14A in that the trees are planted so as to form a hedge (s 14A(1)(a)), rise to a height of at least 2.5m (s14A(1)(b)) and are growing on appropriately zoned land (s14A(2)).

10 Part 14E2(a)(i) states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling on the applicant's land; and in s 14E2(b) that the severity and nature of the obstruction is such that the applicant's interests outweigh any other matters that suggest the undesirability of interfering with the trees.

11 In this case both the applicant and the respondents engaged specialists to prepare shadow diagrams. There is no acknowledgment by the applicant's specialist of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. However, I have allowed these diagrams to be submitted in evidence as they have been raised in the respondents' evidence and the respondents' solicitor raised no objection other than to point out that there is no evidence that whoever prepared the diagrams is appropriately qualified. Discretion to allow this evidence is also enabled by s 75 of the Land and Environment Court Act 1979 and by the Court's Practice Direction No. 22.

12 On the evidence it would appear that the respondents' shadow diagrams are more accurate in terms of the location and the dimensions of the trees and are therefore more likely to be of greater accuracy than the applicant's diagrams that show the trees as a uniform block.

13 Whilst there are some minor differences in the diagrams in the extent of the shadow cast by the trees, the greatest extent of shadowing occurs at 9.00 am on 21/22 December. This occurs over the south-eastern portion of the applicant's dwelling but does not impact on W1. This portion of the dwelling is covered by a verandah and eaves which collectively are set back at least 2m from the actual wall of the house. Windows 2-5 are on the southern elevation and are shaded by the applicant's own dwelling and vegetation.

14 Photographs tendered by both parties support the evidence of the shadow diagrams.

Findings

15 The evidence is clear that there is no severe obstruction of sunlight to any window of the applicant's dwelling as a result of the trees subject to the application. The configuration and aspect of the applicant's dwelling, combined with the plants in the applicant's own garden, are such that the windows on the southern elevation are not capable of receiving direct sunlight even in the absence of the respondents' trees. Window 1 on the eastern elevation is not affected by the trees but is at times shaded by the eaves and the verandah of the applicant's dwelling.

16 The only time that the south-eastern portion of the applicant's dwelling is affected by the trees is for a very brief period during the morning from the spring equinox, through summer and to the autumn equinox. On the 22 nd June, there is no impact from the trees.

17 The main loss of sunlight is to a portion of the applicant's front garden but only for a relatively brief period. There is no provision in the Trees Act to consider the loss of sunlight to anything other than a window of a dwelling.

18 Therefore as the test under s14E2(a)(i) is not satisfied, the Court has no jurisdiction to make any order for the interference with the trees.

19 As a consequence of the forgoing the Orders of the Court are:

(1) The application in its entirety is dismissed.

(2) The exhibits are retained.

J Fakes

Commissioner of the Court

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Decision last updated: 08 February 2011