Land and Environment Court New South Wales

• Medium Neutral Citation: De Zylva & anor v Staas & anor [2012] NSWLEC 1242
• Hearing dates: 23 August 2012
• Decision date: 29 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge - obstruction of afternoon sunlight; severe obstruction not found; impacts of things other than the trees the subjects of the application
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Ball v Bahramali [2010] NSWLEC 1334; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Johnson v Angus [2012] NSWLEC 192; Robson v Leischke [2008] NSWLEC 152; Rylands v Fletcher (1868) LR 3 HL 330
• Category: Principal judgment
• Parties: Mr Christopher & Mrs Robyn de Zylva (Applicants); Mr Ian Staas (First Respondent); Ms Josephine Duggan (Second Respondent)
• Representation: Applicants: C & R de Zylva (Litigants in person); First respondent: Mr I Staas (Litigant in person); Second Respondent: Ms J Duggan (Litigant in person)
• File Number(s): 20540 of 2012

Judgment

1 COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in St Ives against the owners of trees growing on an adjoining property.

2 The applicants contend that eight xCupressocyparis leylandii (Leyland Cypress) trees severely obstruct sunlight to four nominated windows of their dwelling. They are seeking orders for the removal of those trees at the respondents' cost and from within the respondents' property.

3 The respondents do not wish to remove the trees but have obtained permission from Ku-ring-gai Council under council's Tree Preservation Order for the pruning of the trees to half their current height. The respondents' preferred position is to leave them as they are. However, they stated that if the Court ordered pruning or removal they have received advice from an arborist that the cost of any work would be much cheaper if access was available from the applicants' property.

4 The applicants are reluctant to allow any heavy vehicles onto their driveway as they have had it repaved.

The assessment framework and preliminary findings

5 There are a number of jurisdictional tests that must be determined in applications made under Part 2A. These must be satisfied at the time of the hearing.

Section 14A

6 The first test is found in s 14A - Application of the Part. Specifically, s 14A(1) states that this Part only applies to groups of two or more trees that: are planted so as to form a hedge (s 14A(1)(a)), and rise to a height of at least 2.5 metres (s 14A(1)(b)). The trees must be on appropriately zoned land (s 14(2)).

7 The trees are located on the southwestern edge of the respondents' land near the common boundary between the parties' properties. The trees are in the respondents' front garden to the north of the applicants' driveway. It was confirmed on site that the respondents planted the trees in 1993 in order to form a barrier between the two properties. It appears this was shortly after they moved into their property. It was accepted that the trees were planted so as to form a hedge. It was agreed that the trees are closely spaced, of the same species, and would readily be perceived by a passer by as a hedge in their current state. This is consistent with the findings of Preston CJ in Johnson v Angus [2012] NSWLEC 192.

8 I am satisfied that Part 2A applies to the trees the subject of this application and therefore the Court has the jurisdiction to consider the other relevant jurisdictional tests.

Sections 14C and 14E(1)

9 Amongst other things, s 14C deals with the notice to be given to owners of affected land by anyone who applies for Court orders under Part 2A. The decision in Ball v Bahramali [2010] NSWLEC 1334 at [38] clarifies this issue.

10 Section 14E(1) states that the Court cannot make an order under Part 2A unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondent. For a general discussion of this requirement Robson v Leischke [2008] NSWLEC 152 at [191] to [196] and Ball v Bahramali at [39] to [45] are relevant.

11 On the evidence before me, I am satisfied that these tests are satisfied and I can move on to consider the substantive issue in these proceedings, that is - is there a severe obstruction to sunlight to windows of a dwelling on the respondents' land as a consequence of the trees the subject of this application.

Section 14E(2)

12 Section 14E(2)(a)(i) states:

(1)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.

13 If this section is satisfied for any window and for any of the trees, the Court must then consider the balancing of interests under s 14E(2)(b). This in turn requires consideration of a number of discretionary matters in s 14F. If the jurisdictional tests in s 14E(2) are satisfied, the Court's powers under s 14D to make any orders it thinks fit to remedy, restrain or prevent the severe obstruction are engaged.

Other issues raised by the applicants

14 The application and other material provided by the applicants included many references to a 'Registered Local Area Covenant'/ restrictive covenant concerning the erection of fences. The applicant presses what he considers to be the strict liability precedent in Rylands v Fletcher (1868) LR 3 HL 330. The applicants contend that the respondents have breached the terms of the restrictive covenant and are strictly liable for the consequences of that breach.

15 In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [48] (c) deals with Rylands v Fletcher and negligence. He states in part::

However, in Australia, strict liability within the rule in Rylands v Fletcher has been subsumed within the law of negligence by the High Court decision in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. Strict liability can, however, be reintroduced by statute."

At [205] to [210] Preston CJ further considers nuisance and negligence as they applied to the Trees Act in force in 2008. At that time, only Part 2 of the Act applied. At [219] Preston CJ states (in part):

219The Trees (Disputes Between Neighbours) Act 2006 contains no limitation on bringing common law actions in trespass or negligence, regardless of whether the tree concerned is one to which the Trees (Disputes Between Neighbours) Act 2006 applies. The Land and Environment Court, however, has no original jurisdiction to hear and determine such common law actions, nor would such actions be ancillary to a matter that falls within jurisdiction such as an application under the Trees (Disputes Between Neighbours) Act 2006 but rather are separate causes of action.

16 In my view, the issue concerning compliance or otherwise with a covenant on the erection of fences is not within the jurisdiction of the Trees (Disputes Between Neighbours) Act 2006; especially in an application made under Part 2A. Therefore, the material in the applicants' evidence concerning the alleged breach of a restrictive covenant is irrelevant to my determination of these proceedings.

Relevant site features

17 The applicants' dwelling is aligned from front to back in a generally west to east direction. The applicants' property is located on the lower side of the street, and the dwelling is down slope of both the road and the respondents' property. The applicants have resided there for 33 years.

18 The respondents have nominated four windows in their application. Window 1 (W1) is a full-length west-facing window of the lounge room; W2 is a full length/ double width north-facing window of the lounge room; W3 is the north-facing window of the dining room; and W4 is collectively the west-facing kitchen windows.

19 The applicants contend that the Cypress trees obstruct at least 2 hours of afternoon sun from each of these windows. They are most concerned with the loss of sunlight from late April to late August. They state they start to lose sunlight to W1 from about 1.00pm until about 3.15 pm; to W2 from about 1.15 to about 3.30 pm; to W3 from about 2.15 to sunset; and to W4 from about 2.30 pm to sunset (considered to be about 4.30 pm). The applicants consider the Cypress trees are the cause of what they say is a severe obstruction of sunlight to these windows.

20 The applicants did not provide any shadow diagrams that may have assisted the Court in determining whether the Cypress trees severely obstruct sunlight to the nominated windows. Apart from their oral statements during the hearing and the times detailed in the claim form (noted above), the only relevant evidence are photographs of the shadows on the house "taken on or about June 2011" (statement [7], p3, exhibit B referring to a photograph on p5 of the Exhibit Note - exhibit B). This photograph shows a small area of sunlight on W2 with the majority of the applicants' lounge room being in shade to the height of the ridge capping.

21 However, given the lack of detailed objective evidence, I must consider the site and the circumstances as I saw them at the time of the hearing and consider some of the discretionary elements in s 14F. In particular, it is necessary to determine the extent of the obstruction of sunlight as a consequence of the trees subject to the application as opposed to other features/ vegetation that may obstruct sunlight.

22 The on-site hearing commenced on 23 August at 9.30am. By 10.00am we were inside the applicants' dwelling to consider each of the nominated windows. Sunlight was streaming through W2 at that time. The applicants stressed that the loss of sunlight occurred after 1.00pm. The applicants stated that afternoons were when they used their lounge room rather than mornings.

23 Given the aspect of W1 and W4 there was no direct sunlight through these windows at the time of the hearing, nor was there any direct sunlight through W3.

24 It is important to consider a number of other elements in the immediate vicinity of the applicants' dwelling that are highly likely to influence the amount of sunlight reaching the nominated windows.

25 On the respondents' land and to the north of the Cypress trees and quite close to them are a Pittosporum and another unidentified small evergreen tree. The Pittosporum is about 9m tall. Neither of these trees is subject to the application. To the north of the Pittosporum is a deciduous pear tree approximately 8-9m tall.

26 On the applicants' land to the east of the Cypress trees are a number of tall shrubs approximately 5-6m tall including a Murraya and several Camellias. These evergreen trees are to the north and northwest of W1 and W2; the foliage of the Murraya merges with the foliage of several of the Cypress. The closest Cypress is T8 some 12m to the northwest of W1/W2. Outside W3 is a large pot containing a Cycad; to the west of part of W4 is a tall clipped Camellia planted in a small garden bed. Also on the applicants' land is a very large Liquidambar in the front garden close to the verge; this tree was not in leaf at the time of the hearing.

27 On the property adjoining the applicants' property to the northeast and the respondents' property to the east are several large trees. One large deciduous tree is covered in ivy, which gives it the appearance of being an evergreen; this tree is to the north of W2. Other tall trees to the southeast include a Brush Box (evergreen) and a Liquidambar (deciduous).

28 Across the road and upslope of the applicants' dwelling are several tall eucalypts on council and private land and a two-storey dwelling. To the northwest on the ridgeline are tall eucalypts and other dwellings.

29 The extent of the nearby vegetation is shown on page 1 of the exhibit note - exhibit B. This is an undated Google Earth photograph. While the photograph shows the trees in full leaf and is therefore not taken in late autumn/winter, it does indicate the size, location and number of nearby trees in addition to the Cypress trees.

30 Apart from vegetation other than the Cypress trees that may limit sunlight to the nominated windows, I noted several aspects of the applicants' property I consider relevant to my determination. The eaves of the dwelling are relatively wide. The applicants stated that this design is meant to allow winter sun but limit summer sun. Window 3 is in a corner of the dwelling, adjacent to the kitchen and opposite the return of another wing on the northern side of the applicants' dwelling. This window allows light into one end of the dining room. That same northern wing also shades W4 from all morning sun.

Is s 14E(2)(a)(i) satisfied?

31 The Act uses the word 'severely'. The Macquarie dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, sold, heat etc and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus the legislature has set a high bar beyond even moderate annoyance or inconvenience.

32 While I accept that each of the eight cypress trees will to some extent obstruct sunlight to the nominated windows of the applicants' dwelling, on the evidence before me, I am not satisfied to the level required for the making of orders, that the obstruction caused by any of them is severe.

33 The photographs tendered by the applicants have no time or date on them and are of limited assistance in proving their case except that they do show W1 and W2 to be in almost full shade. The only information is that the photographs were taken some time in June 2011.

34 The orientation of W1 is such that it will mostly receive only afternoon sun. It would appear from the oral evidence on site that in mid winter W1 receives some sun before 1:00pm then loses it for about 2 hours than receives late afternoon sun until sunset. While not quantified I am assuming that the window may receive up to 2 hours of sun and is in shade for at least 2 hours. While I agree that the Cypress trees are certainly likely to make a contribution to that shade, there are trees on the applicants' land that will contribute to the shade and other trees on the respondents' land that would have a similar impact even in the absence of the conifers. I have referred to the down slope position of the applicants' dwelling and the more elevated dwellings, trees and ridgeline to the northwest. It would not be unreasonable for me to assume that these physical aspects of the site and the locality place limits on sunlight reaching W1.

35 With respect to W2, these face north and will receive more sun than W1 however, these windows are also likely to be affected by trees on the adjoining property to the south-east and by trees on the applicants' property. As with W1, the Cypress trees will have some impact on the afternoon sun but the uncertainty of the quantum of that impact is such that I am not satisfied that the impact of those trees is sufficient to engage the jurisdiction and the making of orders for any interference with them.

36 I have formed the opinion while the cypress trees will obstruct some afternoon sunlight to W3; the window is otherwise constrained by its location, orientation and vegetation on the applicants' property. Even if I were to find that the obstruction was severe (and I have not), given the other constraints and the limited angle for any direct sunlight to that window, I would find on balance and after consideration of s 14E(2)(b) and S 14F, that it would be unreasonable in the circumstances to order any interference with the trees.

37 In regards to W4, there is no evidence to demonstrate that any or all of the Cypress trees severely obstruct sunlight to these windows. As stated above, this window is shaded by the wing to the north, vegetation on the applicants' land - in particular the large camellia to the west of the window, and the broad eaves.

Conclusions and orders

38 After considering the matter carefully, I am not satisfied to the level required by the Act that any of the trees the subject of the application are severely obstructing sunlight to any of the nominated windows of the applicants' dwelling. While I accept that they are causing some obstruction, it is impossible on the evidence before me to quantify the contribution of the nominated trees when there are many other obstructions.

39 Therefore as the jurisdictional test in s 14E(2)(a)(i) is not satisfied, the Court has no jurisdiction to consider the matter any further. Therefore, the orders of the Court are:

(1) The application is dismissed.

____________________

J Fakes

Commissioner of the Court

Decision last updated: 29 August 2012