Land and Environment Court New South Wales

• Medium Neutral Citation: Pham v Papaioannou [2011] NSWLEC 1044
• Hearing dates: 28 January 2011
• Decision date: 09 February 2011
• Jurisdiction: Class 2
• Before: Brown C and Galwey A/C

Decision

Appeal upheld, in part

• Catchwords: TREE DISPUTE - whether trees create severe obstruction of sunlight to, and view loss from, a window in a dwelling
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Dr Tri Huu Pham (Applicant); Mr Emile Papaioannou and Ms Vicky Papaioannou (Respondents)
• Representation: Counsel: Mr M Gunning, barrister (Applicant); Mr C McFadzean, solicitor (Respondent); Solicitors: Shaw Reynolds Bowen & Gerathy (Respondent)
• File Number(s): 20802 of 2010

Judgment

1 COMMISSIONERS: This is an application under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Liguria Street, South Coogee regarding: trees on the adjoining property that is claimed obstruct sunlight to, and views from his dwelling.

2 The applicant's dwelling was inspected on the site view and the locations of the view loss and the loss of sunlight were observed ; and an understanding of the relationship between these locations and the adjoining properties was made. The respondents' rear yard was also inspected, as were the trees in question, and observations were also made of the relationship between this area and the adjoining property, including the windows identified in the application.

The application

3 Dr Pham is seeking orders that require the pruning of 7 x Lillypilly that have heights ranging between 2.76 m and 3.25 m. The trees are located at the northern end on the adjoining property, and the application seeks orders that the trees be maintained by the respondents at regular intervals, so that the top level of the trees will always remain below or at the level of the top of the existing colour bond fencing on the common boundary. During the hearing, Mr Gunning, for the applicant submitted the applicant would accept pruning of the trees to a height of some 250mm above the existing colour bond fence.

4 The application also seeks orders to prevent other trees being planted to prevent a similar obstruction along the boundary or elsewhere on the property and also orders binding successors in title. The former is outside the scope of the Act as the Act applies only to existing trees and the latter is inconsistent with the provisions of s 16 of the Act.

5 The application indicates that the view loss occurs from a large east facing window (W1) and an adjoining narrow vertical window (W2), both located in the living room, and from the rear yard, also in an easterly direction. The application states that the trees prevent distant views, over existing roofs, to the Pacific Ocean. The severe loss of sunlight is said to occur to at W1, and to a lesser extent, W2.

The respondent's position

6 The respondents maintain that the trees should be maintained to a height of 1.1 m above the colour bond fence. The trees provide privacy to the back garden that is landscaped and used regularly by the family for barbecues and entertaining. The trees also provide a vegetative buffer to break down the bulk of the applicant's building adjoining the rear yard.

7 The respondents also provided s 14D Orders in the event that the Court does not adopt their principal position. In summary, these Orders provide for:

1. The pruning of the seven trees to a height of 1.1 m above the colour bond fence.

2. All costs of the initial pruning to be met by the applicant.

3. The initial pruning to be undertaken within four weeks.

4. No regrowth to extend beyond 1.1 m above the colour bond fence and where the trees exceed this height, the applicant is to provide a request in writing to the respondents to prune the trees to height of 1.1 m above the height of the colour bond fence within two weeks, and with costs being borne by the respondents.

The framework for consideration

8 Section 14A(1) provides:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

9 Section 14B provides:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

10 Section 14D(1) provides:

14D Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the applicant's land, or

(b) any view from a dwelling situated on the applicant's land,

if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

11 Section 14D(2) provides the powers to make an order under subsection (1).

12 Section 14E(2) provides:

14E Matters of which Court must be satisfied before making an order

.

(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

13 Section 14F provides for the matters to be considered by the Court before determining an application.

Findings

14 Based on the site inspection, we are satisfied that the 7 x Lillypilly satisfy the requirements of s 14A(1) in that the group of trees contains two or more trees (s 14A(1)); are planted so as to form a hedge (s 14A(1)(a)) and have height of at least 2.5 m (s 14A(1)(b)).

Section 14D

Sunlight to a window

15 Section 14D(1)(a) raises three separate matters. First, the obstruction must be "sunlight", second, it must be to a "window" and third, any obstruction must be "severe".

16 On the first matter, we accept that the potential obstruction is "sunlight" for the purposes of s 14D(1). Second, and based on the site inspection, we do not accept that the 7 x Lillypilly identified by the applicant have the potential to create an obstruction of sunlight to windows W1 or W2. In our assessment, only 4 of the Lillypillies could affect sunlight to these windows, even accepting the inaccuracy of the applicant's diagram. These trees are identified as Trees T4 to T7 in the application.

17 On the third matter, we do not accept that the obstruction is "severe" for two reasons. First, the applicant and the respondent provided separate diagrams to indicate the extent of overshadowing created by the proposed trees, although neither diagrams were in the form of an expert report and their authors were unavailable for cross examination. In our opinion, this is not critical to the Court's consideration as with the benefit of the site view, an understanding of the movement of the sun, particularly in midwinter, the orientation of the site and the comments later in the judgment regarding the appropriate level of pruning, we can comfortably conclude that reasonable levels of sunlight will still be available to windows W1 and W2. Under either assessment, the obstruction could not be regarded as "severe". Second, and even if we were to find that the obstruction to windows W1 and W2 was "severe", we do not accept that this finding would necessarily be fatal to the application. Section 14F provides the matters to be considered by the Court before determining an application. Section 14F(s) provides the following matter:

(s) such other matters as the Court considers relevant in the circumstances of the case

18 In our opinion, a relevant circumstance of the case is that the living room of the applicant's dwelling has expansive windows and full height glass doors on its northern and western elevations that, even considering the existing vegetation and some building obstructions, is likely to provide extensive sunlight access to the living room, at least from mid morning until late afternoon. Even without specific shadow diagrams, we can comfortably conclude that the living room would likely satisfy any residential development standard for solar access, even if there was a severe obstruction to the east facing window of this room.

19 In accordance with s 14E(2), we are not satisfied that the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, and as such no order can be made in relation to this contention.

View from a dwelling

20 Section 14D(1)(b) raises two separate matters. First, there must be an obstruction of "any view" from the applicant's dwelling and second, any obstruction must be "severe".

21 On the first matter, we are satisfied that there is a view available in an easterly direction towards the Pacific Ocean. It is a distant view over existing rooftops, but it is a view that could reasonably be seen as valuable and a desirable asset from the applicant's property. The requirement in s 14D(1) (b) is that the view must be from "a dwelling" so the comments on sunlight in the previous paragraphs about the rear yard are equally applicable. Consequently only Trees T4 to T7 fall within the bounds of the Act. Any view loss associated with Trees T1 to T3 is from the rear yard and not "a dwelling"

22 With the benefit of the site view, we are not satisfied that the extent of pruning proposed by the applicant or the respondents is appropriate in this case. We have little difficulty in concluding that the pruning of Trees T4 to T7 is appropriate and that reasonable access to views for the applicant can be obtained and at the same time reasonable levels of privacy can be provided for the respondent. The adoption of proposed levels of pruning suggested by the applicant or respondents will clearly provide an imbalance in favour of those suggesting their level of pruning.

23 In our opinion, the appropriate level of pruning would be at a level 500 mm above the level of existing colour bond fence, which has a height of 1.1 m when measured from the tiled path adjoining the fence on the applicant's property. A level of 1.6 m above the path will provide a reasonable level of protection from overlooking from any person walking along the path adjoining the common boundary on the applicant's property. This height of pruning will also allow viewing from windows W1 and W2 from inside the house over the trees; the floor level being some 250 mm above the level of the outside path but at a greater distance from the trees. At worst, the upper parts of a person standing on the opposite side of the respondent property may be visible from the applicant's windows although the vast majority of the rear yard, including the existing dining area, would be unable to be viewed from the applicants property.

24 In considering the relevant matters in s 14E, we find that a reduction in the height of the trees can be justified for a number of reasons. First, the trees did not exist prior to the construction of the applicant's dwelling (s 14F(b)). Second, the trees grew to height exceeding 2.5 m since the applicant has occupied the dwelling (s 14F(c)). Third, the pruning of the trees will not unacceptably impact on their health and vigour (s 14F(k)). Fourth, the pruning of the trees will not impact on the privacy provided by the trees on the respondents' property (s 14F(l)) and at the same time will provide views from the applicant's property (s 14F(q)).

25 In accordance with s 14E(2), we are satisfied that the trees are severely obstructing a view from a dwelling situated on the applicant's land, and as such, an order can be made in relation to this contention. In coming to this conclusion, we find that the view loss is "severe" because the trees in question obstruct any view from window W1.

26 In terms of who should pay for the pruning, we consider that as the benefit goes to the applicant, the applicant should contribute, equally with the respondents, to the cost of the initial pruning. Thereafter, the responsibility will lie with the respondent to maintain Trees T4 to T7 at the height of 500 mm above the height of the colour bond fence or 1.6 m above the level of the path adjoining the fence on the applicant's property.

Orders

27 The Orders of the Court are:

1. The application is upheld, in part.

2. The respondents to engage and pay for an AQF Level 3 arborist or horticulturist to prune Trees T4 to T7 to a level where they can be maintained at a height of no more than 500 mm above the height of the colour bond fence or 1.6 m above the level of the path adjoining the fence on the adjoining property.

3. The applicant is to reimburse the respondents, 50% of the cost of the work identified in order 2 within 30 days of the date of notice being given that payment has been made for the work.

4. The works in order 2 are to be completed within 30 days of the date of these orders.

5. The respondents are to maintain, at their cost, Trees T4 to T7, at a height of no more than 500 mm above the height of the colour bond fence or 1.6 m above the level of the path adjoining the fence on the adjoining property.

6. The exhibits are retained.

G T Brown

Commissioner of the Court

David Galwey

Acting Commissioner of the Court

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Decision last updated: 08 March 2011