Land and Environment Court New South Wales

• Medium Neutral Citation: Atkinson v Matherson [2011] NSWLEC 1121
• Hearing dates: 11 March 2011
• Decision date: 11 March 2011
• Jurisdiction: Class 2
• Before: Moore SC, Galwey AC

Decision

(1)The respondent is to prune all nine Leighton Green trees located along the rear boundary of her property to a point 300 millimetres below the height of the upper side of the kitchen windowsill of the applicant's unit;

(2)The respondent is to prune the nine Leighton Green trees, in future, at such intervals as may be necessary, so that the height of those trees does not exceed the height of the upper side of the kitchen window sill on the applicant's property;

(3)Pruning in order 1, that is the initial pruning, is to be carried out within sixty days of the date of these orders;

(4)Should the respondent seek access to the common property of 88 Wood Street for the purposes of carrying out the pruning in either order 1 or order 2, the applicant is to use her best endeavours to obtain the consent of the body corporate for access for those purposes; and

(5)The pruning is to be carried out at the cost to the respondent.

• Catchwords: Hedge; Severe obstruction of view; severe obstruction of sunlight to a window
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
• Category: Principal judgment
• Parties: A Atkinson (Applicant); C Matherson (Respondent)
• Representation: A Atkinson (Applicant in person); C Matherson (Respondent in person)
• File Number(s): 20962 of 2010

Judgment

1 Leighton Green cypress trees are regularly planted in urban areas to provide hedges that afford privacy and shading to those who plant them. They are quick-growing, are comparatively robust and when pruned are comparatively indestructible. They are regarded by many as a pest but are nonetheless used widely for hedging purposes.

2 In these proceedings, Ms Atkinson makes an application to the Court pursuant to Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act) concerning nine Leighton Green trees located on the property immediately adjacent to and slightly down slope of the block of units within which she resides.

3 There are a number of matters that we need to address in establishing that we have jurisdiction with respect to the trees. First, we observe, for completeness, that, although the trees are separated from the outer boundary wall of Ms Atkinson's unit and are thus separated by a strip of common property of the block of units within which she resides, consistent with the decision of the Court in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 , the very first case decided under this legislation, we are satisfied that, for the purposes of the jurisdictional test of the trees being located on land adjoining the applicant's land, the gap caused by the common property does not require us to set aside the application.

4 Having concluded that point, we then proceed to turn to the range of jurisdictional tests that require to be addressed pursuant to s 14A of the Act. That requires that there be two or more trees that are planted so as to form a hedge and rise to a height of at least 2.5 metres above existing ground level. We are satisfied, from the photographic evidence and from our site inspection this morning, that each of the separate elements contained in that description are met and, as a consequence, we have jurisdiction (in that the nine Leighton Green trees constitute a hedge).

5 We then are required by the Act to turn our attention to a number of matters contained in s 14D of the Act. That involves us, given that the application is made with respect to both obstruction of sunlight to two windows and obstruction of a view from two windows on the applicant's property, to make four separate determinations. They are, in the first instance, whether there is an obstruction of a view for each of the windows; second, whether there is an obstruction of sunlight for each of the windows; and finally, in each case, whether that obstruction is severe.

6 We turn first to consider the kitchen window. We have in evidence a photograph from the kitchen window of the flat immediately above the applicant's flat that shows, although distorted to some extent by the flyscreen through which the photograph has been taken, a view to the south-west. The tips of the Leighton Green trees are observable in that photograph. Making allowance for the fact that the window from the kitchen below, that is, the applicant's kitchen, will be some 3.5 m or so lower, we conclude that, if the trees were not present, that which would be able to be viewed from her window would be part of the built form of a number of properties located immediately to the south-west (including the respondents property) together with a significant vegetative element in the Little Manly Point Reserve.

7 We think it unlikely, although it might be possible to a minor extent, that there would be views of the water of the harbour but there might well be views to the suburban features and built form in the distance beyond. Instead of that outlook from that window, what is presently there is the foliage - unobstructed almost to full height within the outlook and leaving only minor portions of sky to be observed through that window. We are satisfied, first, that that view is obstructed and, secondly, that, for this window, the obstruction is severe.

8 We have some shadow diagrams provided to us as part of the evidence tendered by Ms Atkinson. That shadow diagram material shows, that for significant portions of the year, a significant part of the afternoon sun will be lost to the kitchen window, so that, at 5pm on 22 December and at 4pm on the equinoxes, there will be virtually no sunlight falling directly upon that window. The position can only be further exacerbated at the winter solstice. We are satisfied that, for that window, there is an obstruction to sunlight of it and that the obstruction to sunlight on the kitchen window is to be regarded as severe (given the orientation of the building and the time of day when it is likely that direct sunlight would initially commence falling on that window even if the trees were not present).

9 We now turn to the lounge room window. First, we observe that the view from the lounge room window is only obscured to approximately half the length of that window. We observe that, to the south of the end of the row of Leighton Green trees, there still remains, although filtered through other vegetation on the neighbouring property to the south of the respondent's property, a view that is not unattractive and which includes water as well as built form features. We cannot be satisfied that there is a severe obstruction to the view from the lounge room window (although we accept that there is an obstruction to it).

10 If we are wrong in our assessment of the question of the impact of the view from the lounge room area, we are also obliged [by s 14F(q)] to have regard to the nature and extent of any view affected by the obstruction (which we have already analysed) and the nature and extent of any remaining view.

11 The remaining view through the south-west facing window is of some attraction and significance. In addition, we are to have regard to other views that are available from the property and the phrase that is used, "any remaining view" does not confine us to considering the remaining element of the particular view that is the subject of the application.

12 There are also extensive and expansive views from the lounge room to the south-east to the Australian Police Force Academy across the water and to the vegetated area in Sydney Harbour National Park on North Head. Those are further aspects that would cause us to conclude that there is no basis requiring our intervention with respect to views from what is described as W1 in the living room.

13 We turn, however, to the second limb of the application with respect to the window in the living room, that which is raised with respect to the impact on the sunlight falling on that window. A similar position arises with respect to sunlight on this window as arises with respect to the kitchen window that, as a consequence of the north-west/south-east orientation of the building, this means that the sun that falls on the living room window falls but obliquely upon it.

14 We are satisfied, on the solar access analysis diagrams that have been tendered on behalf of Ms Atkinson, that the impact on sunlight on the living room window is also obstructed and that, given that that window has a lower sill height than that of the kitchen window, the overall effect of that obstruction is not only severe but it is qualitatively more severe than that of the kitchen window's obstruction not only because of the proportion of the window that will be shaded but also because of the use of that room.

15 As a consequence, we are satisfied that, on three of the four bases put by the application, we should consider that there has been an impact caused by the hedge and that that impact of the hedge is severe.

16 We therefore turn to consider what should be the appropriate remedy to be granted. This is done in the context of the requirements of s 14E(2)(b) (that is the balancing of the severity and nature of the obstruction and the interests of the applicant in having that obstruction remedied and the benefits that fall to the owner of the hedge from having the trees).

17 We observed, during the course of our inspection of Ms Matherson's property, the partially constructed outline of additions to her dwelling at the rear. We observed that there would be a reasonable need in what is a densely settled urban area for privacy from overlooking, not merely from Ms Atkinson's apartment and the apartment above but from other apartments in the complex that might be capable of looking into Ms Matherson's rear yard.

18 We have considered, balancing those, how we might address the rectification of the impact of the trees upon Ms Atkinson's property in a fashion that provided appropriate relief from the severe obstruction of sunlight to two windows and the severe obstruction of a view from one.

19 In doing so, we have regard to the clearly expressed view of the respondent that, if we were to order pruning, we should order pruning on a uniform basis across all of the trees forming the hedge. We are of the view, in any event that, as well as her aesthetic desire for that to occur, it is appropriate to order such pruning for reasons of addressing matters where we have held it is appropriate for us to intervene.

20 In doing this, we are mindful of three factors that we need to set out in our orders. The first is a pruning regime that is capable of providing reasonable and sufficient relief to Ms Atkinson; second, a pruning regime that will provide an appropriate degree of protection to the respondent; and third, a pruning regime that is not so radically onerous as to its maintenance requirements as to have the respondent up a ladder every second weekend pruning the top of the hedge with a pair of nail scissors.

21 It has been the Court's practice, in making pruning orders, to provide for an initial pruning and then to set a limit somewhat above that within which the height of the hedge is to be maintained - thus, as a general rule, endeavouring to ensure the pruning should not need to occur any more frequently than six monthly (and perhaps at longer intervals depending on the growth of the trees).

22 There is a single height (but a disagreement as to the appropriateness of it) proposed by the application. Essentially that which is sought from the architectural diagram that is provided as part of Ms Atkinson's application would have the trees pruned to the height of the upper level of the floor slab of her unit.

23 We consider that that height would be unreasonable given that that height is not only below the sill level of the kitchen window but is also significantly below the sill level of the lounge room window. We do not consider it is unreasonable to have part of a vegetated screen in view from the lounge room window as the views from that location will still be enjoyed from both a sitting and a standing position.

24 We consider that the appropriate reference point for the orders is the upper level of the sill of the kitchen window. As a consequence we propose the following orders. In making these orders we also observe, as will be evident from the fourth order that we are going to make, that it may be appropriate for the respondents to seek the consent of the body corporate of the unit block within which Ms Atkinson resides for the purposes of access to the rear concrete area for the purposes of pruning.

25 Although the body corporate is not party to these proceedings, we are able to order that, if the respondents make such a request of the body corporate of 88 Wood Street, then Ms Atkinson is to use her best endeavours with the body corporate to obtain consent for access from that point for the purposes of pruning.

26 As a consequence of all of the foregoing, we give the following orders:

(1) The respondent is to prune all nine Leighton Green trees located along the rear boundary of her property to a point 300 millimetres below the height of the upper side of the kitchen windowsill of the applicant's unit;

(2) The respondent is to prune the nine Leighton Green trees, in future, at such intervals as may be necessary so that the height of those trees does not exceed the height of the upper side of the kitchen window sill on the applicant's property;

(3) Pruning in order 1, that is the initial pruning, is to be carried out within sixty days of the date of these orders;

(4) Should the respondent seek access to the common property of 88 Wood Street for the purposes of carrying out the pruning in either order 1 or order 2, the applicant is to use her best endeavours to obtain the consent of the body corporate for access for those purposes; and

(5) The pruning is to be carried out at the cost to the respondent.

Tim Moore

Senior Commissioner

David Galwey

Acting Commissioner of the Court

Decision last updated: 20 May 2011