Land and Environment Court New South Wales

• Medium Neutral Citation: Johnston v Arndell [2011] NSWLEC 1212
• Hearing dates: 20 July 2011
• Decision date: 20 July 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Potential injury to persons; Hedge - obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: McLaren v Lewis [2011] NSWLEC 1170; Wisdom v Payn [2011] NSWLEC 1012
• Category: Principal judgment
• Parties: Mr H A Johnston (Applicant); Ms S Arndell (Respondent)
• Representation: Applicant: Mr Johnston (Litigant in person); Respondent: Ms Arndell (Litigant in person)
• File Number(s): 20284 of 2011

Judgment

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

1 COMMISSIONER: This is an application pursuant to both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Dudley against the owner of trees growing on an adjoining property.

2 With respect to Part 2, the applicant is seeking orders for the pruning of all overhanging parts of the trees back to the fence line in order to prevent injury; specifically, to prevent palm fronds from injuring his grandchildren's eyes.

3 The order sought pursuant to Part 2A is the pruning of the trees to a height of 2.5 m to remedy, what the applicant contends, is a severe obstruction of sunlight to a number of windows of his dwelling.

4 The applicant lists 5 trees in the application. The trees, with the exception of tree 5, are palms. The identification of the trees and the number of stems were verified on site; the actual details differed somewhat from the application.

5 Tree 1 is a Golden Cane Palm, a clumping species with multiple stems. The specimen in question has many stems of varying heights, however, the applicant has nominated the 8 tallest stems. Tree 2 is a clump of 4 closely planted single-stemmed palms; tree 3 is a pair of single stemmed palms, as is tree 4. The single stemmed palms are probably Bangalow Palms. Tree 5 is an unidentified shrub.

6 The trees were planted by the previous owners of the respondent's property. They are growing in a garden bed along the southern side boundary of the respondent's property close to the dividing fence between the parties' properties.

7 The applicant's two-storey dwelling is to the south and upslope of the applicant's property. The upper level is the main living area; the downstairs section is described as a rumpus/work room that is used, in part, as a childcare centre.

Part 2

8 Dealing first with the application pursuant to s 7, Part 2. The applicant claims that should fronds from trees 2 and 3 project through the balustrades of the deck on the northern side of the upper level that adjoins the main living area, they could injure the eyes of his grandchildren. He is also concerned, that should the children lean over the balustrade, their eyes may be damaged, especially if the fronds are moving in the wind.

9 At the hearing, I observed fronds of one or more of the stems from trees 2 and 3 just touching the balustrades. There was no significant projection of any frond over or through the balustrades. The limited extent of any interference of the fronds with the balustrade is illustrated in photographs included with the Tree Dispute Claim Details (Damage to property or injury to a person).

10 The respondent stated that she had no objection to the applicant pruning any overhanging frond. When asked why he hadn't pruned any fronds, the applicant stated that due to a recent injury, he was unable to climb a ladder.

11 Under s 10(2), the Court of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. The risk of injury must be reasonably foreseeable to satisfy the injury test in this section.

12 On the evidence before me, I consider the applicant's fears with regards to potential injury to his grandchildren's eyes are highly unlikely to be realised. In the circumstances, I consider the risk of such an injury to be unlikely and improbable. There is no evidence of any such injury occurring. Even if the fronds encroached, any potential injury could be readily avoided by shortening the end of the fronds. I observed that this could be easily and safely done by an adult reaching over the balustrade with a pair of secateurs and without the need of a ladder.

13 As no damage has been caused, or is likely in the near future to be caused, and injury is improbable, none of the tests in s 10(2) are satisfied. Therefore the Court had no jurisdiction to make an order for any intervention with any of the trees on this basis. Therefore, this element of the application is dismissed.

Part 2A

14 Turning to the application pursuant to Part 2A and the severe obstruction of sunlight to windows. The applicant is seeking orders for the trees to be cut to a height of 2.5 m as he understands this to be the height specified in the Act. This appears to be a not uncommon interpretation of s 14A. This is discussed in McLaren v Lewis [2011] NSWLEC 1170 at [34]

34 However, before concluding it is worth addressing the applicant's interpretation of the Trees Act as amended in August 2010. The Act does not place a prohibition on the growing of high shrubs, trees or hedges that may at some stage obstruct sunlight or views. The height of 2.5 m is the height threshold at which the jurisdiction is, in part, enlivened. The Act does not specify any height to which all plants must be maintained. The amendment, as provided in s 14B, simply enables an owner or occupier of land to apply to the Court to remedy, restrain or prevent a severe obstruction of either sunlight to a window of a dwelling and or of any view from a dwelling. The dwelling must be situated on an applicant's land and the trees must be trees to which Part 2A of the Act applies, that is as specified in s 14A, and be on adjoining land. Section 14D(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling and or a view from a dwelling but only if the jurisdiction is enlivened. Any orders so made may place an obligation on the owner of that hedge.

15 In determining applications under Part 2A, there are a number of jurisdictional tests that must be satisfied. The first is s 14A - do the trees, the subject of the application, form a 'hedge' for the purpose of the Act?

Section 14 A(1) provides:

(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)

16 Only if any or all of the trees meet the test in s 14A, the Court must then consider the tests in s 14E(2)(a)(i). This states:

(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,

17 That is - do the trees impact on sunlight to the applicant's dwelling? If there is an impact on sunlight, is it severe? If the impact on sunlight is severe, the Court must then consider s 14E(2)(b). This states:

(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.

18 In order to determine the balance inherent in s 14E(2)(b), consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(i) are satisfied.

19 With respect to s 14A(1), t he Act does not define a hedge. To date, the Court has taken a flexible approach in its interpretation of s 14A(1) as discussed in Wisdom v Payn [2011] NSWLEC 1012 at [45], [66], [67] and elsewhere, and in McLaren v Lewis [2011] NSWLEC 1170 at [21]-[28].

20 I am satisfied that trees 1,2 and 3 are sufficiently close and tall enough to satisfy s 14A(1). Tree 4 is relatively close to tree 5 and could be considered another hedge. However, in the particular circumstances of this matter, and in taking a purposive approach to interpreting s 14A(1), I am content to consider that all 5 trees form a hedge for the purpose of the Act and I have the jurisdiction to proceed to the next stage of the determination.

21 The applicant nominated 4 north-facing windows of the downstairs rumpus/ workroom. Each is a sliding aluminium window that collectively forms a bank of windows with little separation between them. The windows are numbered from east to west. Trees 1 and 2 are opposite W1, tree 3 is opposite W2, tree 4 is opposite W3 and tree 5 is opposite W4.

22 In the Tree Dispute Claim Details (High Hedges), the applicant contends that the morning sun is blocked to windows 1, 2 and 3 for 5, 5 and 4 hours respectively. At the on site hearing, the applicant stated that the morning sun was blocked to windows 1 and 2 but the afternoon sun came through. The applicant was concerned that should the trees continue to grow, more sun would be lost.

23 The applicant tendered photographs of the shade cast by the trees onto the windows. He contends that the photographs were taken between 9.00 am and 11.00am on various occasions between December 2010 and February 2011. The respondent questioned the evidentiary value of the photographs as the time they were taken was not recorded and the dates on many of them were difficult to read. Notwithstanding the respondent's concerns, I am satisfied that the photographs illustrate the impact of the trees on the sunlight received by the windows during the time of the day the applicant is most concerned about.

24 In consideration of s 14E(2), the first part that must be satisfied is whether any of the trees are severely obstructing sunlight to any of the windows.

25 The day of the hearing was wet and overcast so no sunlight was seen however, the sky in the direction and arc through which the sun moves, could be seen from some of the windows. In the absence of any other evidence, such as shadow diagrams, the applicant's photographs and statements are also relied upon.

26 I accept that the morning sunlight through windows 1 and 2 is likely to be obstructed by parts of trees 1, 2 and 3. The applicant stated at the hearing that the windows received sun from about 12.00 pm onwards. The photographs show partial shading of the windows.

27 At the hearing, the only readily accessible window was W2. Access to W1 was obstructed by furniture and play equipment. From standing inside and looking through W2, the sky was visible through the stems and fronds of the palms. The tallest parts of palms 2 and 3 only just project to about the ridgeline of the respondent's dwelling.

28 With regards to windows 3 and 4, at least 50% of the internal area of these windows was covered by bookshelves and other objects. In my opinion, even in the absence of this furniture, sunlight to either window would not be even moderately obstructed by any of the trees subject to the application.

29 The question remains as to whether the obstruction of sunlight to windows 1 and 2, as a consequence of the trees, is severe. The word 'severe' sets the bar at a high level.

30 Occasionally, when assessing the severity of the obstruction of sunlight, the Court has considered typical council planning controls concerning solar access. Typically, windows of living areas should receive sunlight to at least 50% of their area for at least 3 hours between 9.00 am and 3.00 pm on 22 June (the shortest day). Whilst neither the photographs were taken in winter nor the hearing held on the shortest day, there was no evidence to suggest that windows 1 and 2 would not receive that amount of sunlight.

31 In this matter, I am not satisfied that the obstruction of sunlight to windows 1 and 2 is severe. The photographs show filtered sunlight striking the windows, I am satisfied that the gaps I saw through the trees are consistent with this filtering effect. The trees do not form a solid barrier. The applicant stated that the windows receive afternoon sunlight.

32 Therefore as s 14E(2)(a)(i) is not satisfied, the Court does not need to consider the balancing of interests inherent in s 14E(2)(b). However, in this regard, I note that the respondent values the trees for the privacy they afford her property as the windows on the southern side of her dwelling are overlooked from both levels of the applicant's dwelling. I also note that many things other than the trees obstruct the windows of the applicant's dwelling.

33 However, as s 14E(2)(a)(i) is not satisfied, the Court has no jurisdiction to make an order under Part 2A for any intervention with any of the trees and therefore that element of the application is dismissed.

34 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application in its entirety is dismissed.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 22 July 2011