Land and Environment Court New South Wales

• Medium Neutral Citation: Bishop v Safro [2011] NSWLEC 1269
• Hearing dates: 5 September 2011
• Decision date: 14 September 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application in regards to loss of view upheld in part; pruning of one section of hedge ordered; application in regards to sunlight dismissed.

• Catchwords: TREES [NEIGHBOURS] hedge; obstruction of sunlight and views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148Drewett v Best [2010] NSWLEC 1305; Tenacity Consulting v Warringah [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Applicant: Mrs N Bishop; Respondent: Ms E Safro
• Representation: Applicant: Mr P Holland (Solicitor); Respondent: Mr Reuben (Barrister); Applicant: McCullough Robertson; Respondent: Comino Prassas
• File Number(s): 20530 of 2011

Judgment

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

2 The trees are a row of approximately 23 xCupressocyparis leylandii 'Leighton Green' growing along the southern side boundary of the respondent's property. The applicant's ground floor unit is to the south of the respondent's property.

3 The applicant seeks either the removal of the trees or their maintenance at a maximum height of 900mm above the masonry boundary wall between the properties. In the event of any non-compliance of any order that may be so made, the applicant seeks right of access to the respondent's property for the purpose of maintaining the trees at that height and that the works be paid for by the respondent.

4 The basis of the application is the applicant's contention that the trees severely obstruct sunlight to windows of her dwelling and severely obstruct views from her dwelling.

Jurisdiction

5 In considering applications made under Part 2A of the Act, there are a number of jurisdictional tests, the first being whether the trees subject to the application satisfy s 14A of the Act. Relevantly, there must be two or more trees planted (in the ground or otherwise) so as to form a hedge, which rise to a height of at least 2.5 m (above existing ground level), and are on appropriately zoned land.

6 In material filed for the respondent, the contention is that the application fails to satisfy the jurisdictional test in s 14A(1)(b) in that the trees are maintained to a height of less than 2.5m.

7 At the hearing, the height of the lowest section of hedge was measured with a height stick and found to be just in excess of 2.5m. The lowest portion is a section at the southern end of the rear (western) terrace between the wall of the dwelling to the east and a rail on the edge of a wall to the west. The portion of the hedge to the west is planted in a raised planted box some distance below the mid portion; those trees were in excess of 3m above the soil in which they are planted. To the east, the trees between the southern wall of the applicants dwelling, while not measured, were certainly in excess of 3m tall. Therefore, the jurisdictional test in s 14A(1)(b) is satisfied.

Sunlight

8 Under s 14E(2)(a)(i) of the Act, the Court must not make an order under part 2A unless it is satisfied that the trees subject to the application are severely obstructing sunlight to a window of a dwelling. If this section is satisfied, the Court must consider s 14E(2)(b).

9 The applicant identifies four windows of her dwelling to which sunlight is obstructed by the respondent's hedge; all 4 windows face north.

10 Window 2 (W2) is the lounge room window. This window overlooks the respondent's rear terrace. At the time of the hearing, the height of the nearest section of hedge (the lowest/mid section described in [7]) was just over 2.5m, and was observed to cover the lower half of W2. Early morning sun would be obstructed by the respondent's two storey dwelling to the northeast of this window. From within the applicant's dwelling, while the hedge would obstruct some sunlight to W2, it was clear that the amount of sunlight coming through that window would meet the usual planning controls for sunlight, that is a minimum of 3 hours of sunlight to at least 50% of the window. Therefore, with respect to W2, the hedge does not severely obstruct sunlight to that window and no orders can be made on that basis. However, as indicated in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change it is possible for a fresh application to be made.

11 W3 is the window of the dining room, W4 the TV room and W5 the bedroom. Sunlight to all of these windows is obstructed to varying degrees by the proximity and height of the respondent's dwelling. The dwelling is lower and further setback near W5. The applicant contends that prior to the planting of the hedge, she received reflected light from the walls of the respondent's house.

12 While the hedge may obstruct some sunlight to these windows, particularly W5, it is clear that the majority of the obstruction is caused by the respondent's dwelling. The absence of shadow diagrams makes it difficult to determine what shade is cast by the respondent's dwelling into W5. In Drewett v Best [2010] NSWLEC 1305 at [17], the Court has held that the word "sunlight" in the Act is a reference to direct sunlight, rather than just daylight or, in thin case, reflected light.

13 Therefore, on the evidence before me, s 14E(2)(a)(i) is not satisfied and the application in regards to obstruction of sunlight is dismissed.

Views

14 Under s 14E(2)(a)(ii) of the Act, the Court must not make an order under part 2A unless it is satisfied that the trees subject to the application are severely obstructing a view from a dwelling. If this section is satisfied, the Court must consider s 14E(2)(b).

15 The views the applicant contends she has lost are views to the northwest of Obelisk Beach and the reserve beyond from Windows W1, W2 and W3 and parts of Watson's Bay and Green Point Reserve to the north from W1 and W2. Photographs taken in 2005 show the views to north and the recently planted Leyland Cypress trees. W1 is a glass sliding door onto the applicant's rear deck.

16 At the on-site hearing it was clear that some of the trees subject to the application (Trees 1-8/9) do severely obstruct the views to the north through to the northwest from W1, W2 and W3. It is noted that tree 3 is dead but is included in the numbering.

17 Therefore as s 14E(2)(a)(ii) is satisfied, the Court must consider the next jurisdictional test in 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 this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D when the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied.

19 Relevant in this matter are the following clauses:

(a) The trees are wholly located on the respondent's property.

(b) The trees were planted well after the construction of the applicant's dwelling. The trees were planted in 2005.

(c) The trees have reached their current height during the period the applicant has owned her property. The applicant purchased/ occupied her unit in 1984/85.

(e) The applicant contends that the Leyland Cypress were not part of the landscaping condition of development consent for works approved on the respondent's property. It is not clear whether subsequent landscape plans were approved. The issue of compliance or not with a condition of development consent is a matter for Woollahra Council and beyond the jurisdiction of the Trees Act.

(k) Leyland Cypress is generally quite tolerant of pruning. The trees in question have been pruned and any additional pruning should not have any undue long-term impacts on the health or condition of the trees.

(l) The respondent contends that the trees provide privacy to their property, in particular to their kitchen and to the rear terrace area. It is noted that the respondent's property is large and there are several outdoor entertainment areas.

(m) At the on-site hearing it was noted that a clump of Travellers Palms obscures part of the water view to the northwest of the applicant's dwelling. Similarly, a large Kaffir Plum tree to the west blocks the view of Clifton Gardens.

(n) The applicant has attempted to negotiate pruning of the hedge and raised the matter with council in 2005.The respondent has pruned part of the hedge near W2 at a height lower than other parts of the hedge.

(p) The trees are evergreen.

(q) The applicant has a view to the west across the harbour to the Harbour Bridge; this is unaffected by the hedge. The part that is lost is an oblique view across the rear of the respondent's property to parts of the harbour and headlands to the northwest.

(r) The part of the dwelling from which the view is obstructed is the main living area of the applicant's dwelling and the deck at the rear.

20 Mr Reuben for the respondent raised the view sharing planning principle in the principles of view sharing in Tenacity Consulting v Warringah [2004] NSWLEC 140.

21 Relevantly, in this matter, the view said to be lost is a water view which is considered to be more valuable than a land view; the view is a partial view and not a whole view; the view is across a side boundary and therefore more difficult to protect than views from front or rear boundaries; and sitting views are more difficult to protect than standing views. When the whole of the property is considered the portion of view lost due to the respondents' trees is a relatively narrow view but nonetheless quite significant. It is a view capable of being partly restored without unduly compromising the respondent's amenity.

22 With regards to the potential loss of privacy, while I accept that the respondent does not wish the outdoor terrace to be overlooked, the entirety of the hedge is not essential for that purpose. Trees 1-5 are the most western of the trees in the hedge. They screen a sunken courtyard in which a clothesline is located. While those trees do provide some screening of the terrace from the applicant's deck, the majority of the terrace is screened by trees 6-9. Trees 1-5 do not appear to screen the terrace from any other nearby property.

23 When the option of pruning trees 1-5 was discussed, the respondent suggested that an alternative solution would be the reduction in height of trees 1-4 by approximately 300mm. This would line up with the inside wall of the northwestern part of the terrace along which a Viburnum hedge is growing. It was contended that this would be sufficient to enable views from W1.

24 The applicant is short in stature and a reduction by only 300mm would be insufficient to restore the views to the northwest. The alternative option does not include tree 5 which obstructs views from W2.

25 On balance, I consider that the reduction of trees 1-5 to a height of 1.3m above the top of the masonry wall that divides the properties to enable a maintained height of no more than 1.6 m above the wall, to be a reasonable compromise between restoring part of the applicant's view but retaining a reasonable degree of privacy. It would seem to me that complete privacy in a mixed residential setting on a sloping site is an unreasonable expectation.

26 The pruning for the purpose of restoring views is to include all of the Cypress trees at the western end of the row contained within the lower planter box (i.e. above the clothesline courtyard). Any part of any other tree that overhangs the inner eastern side of the wall of the courtyard in which the clothesline is currently located is to be trimmed vertically in line with that wall.

Orders

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

(1) The application to prune the trees to remedy a severe obstruction of a view from the applicant's dwelling is upheld in part.

(2) The application in regards to the obstruction of sunlight to windows of the applicant's dwelling is dismissed.

(3) Within 30 days of the date of these orders, the respondent is to organise and pay for an appropriately qualified horticulturalist, arborist or landscaper to prune all of the Leyland Cypress trees in the planter box above the clothesline courtyard to a height of 1.3m above the top of the masonry wall around that courtyard that divides the parties' properties, including the western edge of that wall. Any part of any overhanging tree from the rear terrace is to be pruned vertically in line with the inner eastern side of the clothesline courtyard.

(4) Thereafter, at the cost of the respondent, that part of the hedge is to be maintained at a height of no greater than 1.6m above the masonry wall described in order 3. At the time of pruning the hedge, any overhanging branches are to be pruned as described in order 3.

_________________________

J Fakes

Commissioner of the Court

Decision last updated: 15 September 2011