Land and Environment Court New South Wales

• Medium Neutral Citation: Hunt v Troy [2011] NSWLEC 1148
• Hearing dates: 13 May 2011
• Decision date: 13 May 2011
• Jurisdiction: Class 2
• Before: Morris C; Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] - Hedge; views, sunlight; no jurisdiction; trees pruned prior to hearing; no severe obstruction of views, sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
• Category: Principal judgment
• Parties: D & A Hunt (Applicants); G Troy (Respondent)
• Representation: Mr D Hunt (Applicant in person); Mrs A Hunt (Applicant in person); Miss G Troy (Respondent in person)
• File Number(s): 20087 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Umina Beach against the owner of trees growing on an adjoining property.

2 The applicants seek Orders for the trimming of a hedge/s on the respondent's land in order to regain water views and to prevent the obstruction of sunlight to windows in the dining and living area.

3 The hearing commenced onsite at the applicants' property and the view was observed from the five viewing points nominated in the application. We were also shown the degree of sunlight said to be lost.

4 The views are in a north-easterly direction toward Broken Bay and across to Box Head in the far distance. A second element of the view was to the north toward Umina Township. Views W2 and W3 are oblique views from the side windows across the front garden of the respondent's property. Views W1 and W4 are from front facing windows although the view is gained partly as an oblique view across the respondent's front garden and partly across the nature strip in front of the respondent's property

5 The second element of the application concerning the obstruction of sunlight alleges the trees overshadow windows W2 and W3.

6 The applicants allege that the view available at the time of construction of their dwelling has been severely impacted by trees on the respondent's property.

The jurisdictional tests

7 Turning to the jurisdictional tests required by the Act, s 14B(b) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land or 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.

8 Section 14A(1) states that Part 2A only applies to groups of two or more trees that are planted, so as to form a hedge, and rise to a height of at least 2.5m and are situated on appropriately zoned land.

9 The applicants contend that all of the trees on the respondent's property, being 19 trees in all, form a hedge, however when pressed, they took the view that T3, T9 and T19 form one hedge, T1, T2 and T13 form another hedge and T11 and T12 form a third hedge.

10 Neither the applicants nor the respondent could provide evidence as to the ownership of T8, however it was agreed that it is most likely owned by the applicants, and accordingly we do not include that tree in our deliberations.

11 Our measurements of the trees, using a height pole, confirmed that all of the above trees exceeded 2.5 m in height. However, we do not accept the applicants' proposition that all of the trees form a single hedge, or indeed three hedges.

12 We do accept that trees T6 and T9 form one hedge and T11 and T12 form a second hedge. We shall refer to these as H1 and H2.

13 The evidence provided to the Court shows that the respondent undertook pruning work in late 2010 and again in April 2011. Accordingly we can only base our assessment on what we observed at the site today. This recent pruning work has led us to form a different conclusion to that of the applicants, as we do not consider the separation between the trees, particularly those on opposite sides of a driveway and a building, any longer constitute a hedge as defined.

14 That leaves us to assess the severity of the impact of those trees that form H1 and H2 on views and sunlight.

15 In view of the above, we are not satisfied that we have jurisdiction to make orders in relation to any trees other than T6 and T9 which form H1 and T11 and T12 which form H2.

16 We turn now to the first matter being views.

17 In accordance with s 14E(2)(a)(ii), we note that the word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.

18 Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders.

19 Whilst there may have been jurisdiction at the time the application was made, that is, the trees may have severely obstructed a view from the applicants' dwelling, the site inspection at the hearing clearly shows there is no severe obstruction of any view caused by any of the hedges subject to this application.

20 While the evidence in the application must be considered, the Court's determination of these matters is substantially based on the facts present at the time of the hearing.

21 Therefore the test in s 14E(2)(a)(ii) is not satisfied and the Court has no jurisdiction to make an order under Part 2A. This includes any order for the future maintenance of the trees.

22 However, as discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, the applicants may make a new application.

23 We turn now to the second element of the application that alleges a severe obstruction of sunlight.

24 There was no reliable evidence available in terms of shadow diagrams to indicate the extent of impact resulting from H1 and H2. We do note however from the evidence of Mr Hunt that the sunlight is early morning sunlight, and that the presence of a roof above a wide veranda that encloses the living/dining area would mean that sunlight from 9.00 am to 3 pm would be more severely impacted by that roof structure than by hedges H1 or H2.

25 Accordingly, we have no evidence of a severe obstruction of sunlight to a window as required by s 14E(2)(a)(i). Similar comments apply in relation to the pruning work undertaken by the respondent and to the impact of that work on our decision in relation to views and we again note, that should the circumstances change, the applicant may make a new application.

26 Therefore as a result of the foregoing, the orders sought cannot be made.

27 The Order of the Court is:

(1) The application is dismissed.

Sue Morris

Commissioner of the Court

Phil Hewett

Acting Commissioner of the Court

Decision last updated: 08 June 2011