Land and Environment Court New South Wales

• Medium Neutral Citation: Lutze v Graham & anor [2012] NSWLEC 1075
• Hearing dates: 27 March 2012
• Decision date: 27 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application for pruning dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; views and sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tooth v McCombie [2011] NSWLEC 1004; Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Tenacity Consulting v Warringah [2004] NSWLEC 140; Hinde v Anderson & anor [2009] NSWLEC 1148
• Category: Principal judgment
• Parties: Mrs L Lutze (Applicant); Mr S and Mrs N Graham (Respondents)
• Representation: Applicant: L Lutze (Litigant in person); Respondents: S & N Graham (Litigants in person)
• File Number(s): 21172 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 made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mona Vale against the owners of trees growing on an adjoining property.

2 The applicant is seeking orders for the pruning of a row of six Leyland Cypress trees to the height of the first floor windowsill of her dwelling.

3 The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant's dwelling and obstruct views from her dwelling.

4 The on-site hearing commenced on the respondents' land with an inspection of the trees. The trees are planted along the south-eastern side of the respondents' driveway. Both parties' properties are on battleaxe blocks some distance from the street. The respondents' driveway adjoins a number of other properties.

5 I am satisfied that the trees meet the criteria in s 14A(1) and are a 'hedge' for the purpose of the Act.

6 The respondents have owned their property for 11-12 years; the trees and the applicant's dwelling were present when they moved in. The applicant purchased her property some two years or so later.

7 The trees are in average health and show signs of past pruning for height control. Recently they have been extensively pruned to enable access for building works currently being undertaken by the respondents. The lower portions of the trees have been substantially thinned.

8 Notwithstanding the condition of the trees, the respondents place some value on them for the privacy they afford their front garden and for the screening they provide. The respondents stated that when their renovations are completed, the garden will be landscaped and this may involve removal of some of the trees.

9 The hearing moved to the applicant's property. There are two elements of the application - obstruction of sunlight and obstruction of views.

10 The nominated windows and viewing points are on the north-western side of the first floor (upper level) of the applicant's dwelling. W1/V1 is the kitchen window, W2/V2 and W3/V3 are windows in the adjoining dining room.

11 The relevant jurisdictional tests are s 14E(2)(a)(i) and (ii) and s 14E(2)(b). These state that:

(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.

12 Dealing with sunlight first; the application states that the issue of sunlight is not currently a problem but will be if the trees continue to grow. This was confirmed at the hearing.

13 The word 'are' requires the sunlight to be severely obstructed by the trees at the time of the hearing. This has been examined in a number of judgments on views including Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] with further lengthy discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]. The principle is the same for sunlight.

14 Therefore as s 14E(2)(a)(i) is not satisfied, the application with respect to sunlight must be dismissed, as the Court's jurisdiction is not engaged.

15 With respect to the severe obstruction of a view from the applicant's dwelling, I must consider whether s 14E(2)(a)(ii) is satisfied. If so, I must then consider the balancing of the parties' needs inherent in s 14E(2)(b) and the necessary discretionary matters in s 14F.

16 The views said to be lost are standing views from the kitchen and dining rooms, and seated views from the dining room, generally to the north to Newport and Pittwater in the distance. The 'lost' view was observed from the balcony adjoining the dining room. A small portion of water could be seen with the majority of the view being the distant hills and headlands forming the Pittwater area.

17 In determining the severity of a loss of a view, the Court has often referred to the planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140 for guidance. A number of the steps in this principle are relevant heads of consideration in s 14F of the Act which are considered in determining the balancing of needs in s 14E(2)(b) .

18 The relevant steps include a qualitative assessment of the type or significance of the view, the impact of the obstruction, consideration of from where the view is seen, and the totality of the views available from the dwelling.

19 In this case, the view is a distant view across many side boundaries; water is a small element of the view - water views are generally more highly valued than land views. Seated views across side boundaries are difficult to maintain. There are also many nearby trees, not on the respondents' property, that would severely limit the available view to a narrow corridor only able to be seen from selected positions within the kitchen and dining room. This was admitted by the applicant.

20 The totality of the views available from the applicant's property include an extensive view across Mona Vale Golf Course to Mona Vale beach and headlands, including the land/water interface and the ocean beyond. Pittwater can be seen from elsewhere.

21 Even if I were to accept the applicant's arguments that the narrow view corridor to Pittwater is severely obstructed by the respondents' trees, I am not satisfied that consideration of the discretionary matters in s 14F leads me to conclude that s 14E(2)(b) is satisfied in favour of the applicant. As discussed above, the desired view is very distant and the impact of trees beyond the respondents' property is so limiting that any pruning of the trees would provide negligible relief. As s 14E(2) is not satisfied, no orders can be made.

22 Before concluding, I note that the applicant expressed a major concern about the density of the foliage and the proximity of the trees to her dwelling. The application before the Court was made under Part 2A and not Part 2 of the Act. The fact that foliage is dense or close does not in itself engage the Court's jurisdiction unless it satisfies, amongst other things, s 10(2) in Part 2 or s 14E(2) in Part 2A. However, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances change.

23 Therefore, in conclusion, as a consequence of the evidence before me, the Orders of the Court are:

(1) The application is dismissed.

_________________

J Fakes

Commissioner of the Court

Decision last updated: 30 March 2012