Land and Environment Court New South Wales

• Medium Neutral Citation: Bagley v Guthrie [2012] NSWLEC 1252
• Hearing dates: 29 August 2012
• Decision date: 07 September 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views and sunlight; insufficient evidence; discretionary matters
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005
• Cases Cited: Johnson v Angus [2012] NSWLEC 192; Drewett v Best [2010] NSWLEC 1305; Ball v Bahramali [2010] NSWLEC 1334; Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Mr J Bagley (Applicant); Ms S Guthrie (Respondent)
• Representation: Applicant: Mr J Bagley (Litigant in person); Respondent: Mr J Johnson (Barrister); Respondent: Fox & Staniland Lawyers
• File Number(s): 20572 of 2012

Judgment

1 COMMISSIONER:This application concerns a row of Cupressocyparis leylandii (Leyland Cypress) growing along the eastern boundary of a property in Turramurra.

2 The applicant has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders to remedy, restrain or prevent a severe obstruction of views from his dwelling and sunlight to windows of his dwelling. In his application, the applicant seeks orders for the pruning of the trees to a maximum height of 4.5 metres and their subsequent maintenance to that height every two to three years. During the course of the hearing, the applicant considered that a height of 5.3m for the younger elements of the hedge would be acceptable and a maximum height of 8m for the older trees.

3 Amongst other things, the respondent values the trees for the privacy they afford and the green backdrop they create. While she has had some trees pruned, she is unwilling to reduce the height of the trees to the heights sought by the applicant.

4 The respondent's position is that the majority of the trees do not satisfy the jurisdictional tests in s 14E(2)(a). However, if the Court finds that this section is satisfied for some trees, the respondent submits that a consideration of s 14E(2)(b) would result in no orders being made for any further interference with the trees.

5 The hearing was held on site. Both parties had obtained arboricultural reports however, only the respondent's arborist, Mr Guy Paroissien, was present at the hearing.

6 In applications made under Part 2A, there are a number of jurisdictional tests to be satisfied before the Court's jurisdiction to make orders is engaged.

Relevant background

7 The applicant purchased her property in 1996; some of the trees were present at that time.

8 In August 1999, Ku-ring-gai Council approved a SEPP 5 development containing 6 detached dwellings and 12 apartments; the applicant owns one of the apartments. According to the Statement of Environmental Effects (exhibit 3), the site was formerly occupied by a dwelling with a substantial amount of open space, some of which was used for keeping a horse.

9 The applicant and his wife moved into their top floor apartment in 2002. The apartment is aligned from north to south; the lounge and family rooms, with an associated large balcony, face north.

10 The respondent's property is to the west; the trees in question are located along the eastern boundary of the respondent's property.

11 The land on which the applicant's dwelling is located contains a number of tall remnant trees; these are generally to the northeast of the applicant's dwelling. To the northwest are tall eucalypts and other trees growing on land other than that of the respondent.

Does Part 2A apply to the trees in contention?

12 Relevant here is s 14A(1) - Application of Part. This states:

(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).

13 It is agreed there are three groups of trees. There is some discrepancy between the number of trees shown in the application and the actual number of trees in the row. The application indicates 27 trees, the respondent's arborist, Mr Paroissien, identifies 34 trees.

14 Using the groups described by Mr Paroissien:

• Group A - 12 semi-mature trees; trees 20 to 27 in the application; the most northerly group; approximately 5-6 metres in height.
• Group B - 6 mature specimens towards the centre of the row; trees 15-19 in the application; one tree has been reduced to a stump of 1.6m and the others are on average about 12m tall.
• Group C - a row of 16 semi-mature trees to the south of Group B; trees 1-14 in the application; heights range from about 5-8m; some have recently been pruned to about 5m.

15 Group B was present when the respondent purchased her property in 1996. While the person who planted the trees was not present, the trees are clearly planted. Similarly, while the trees are planted to form a semi-circle, they are linearly arranged and are readily perceived as forming a hedge. According to the respondent's statement, Groups A and C were planted in 1998, prior to the development of the land now occupied by the applicant.

16 There is no dispute between the parties that s 14A(1) applies to the trees the subject of the application. That is, each group of trees was planted to form a hedge, and apart from one tree in Group B, all trees are taller than 2.5m. The trees retain the form of a hedge. [For a discussion of s 14A(1)(a) see Johnson v Angus [2012] NSWLEC 192]. Therefore, as this test is satisfied, I can move on to consider the other tests.

Sections 14C and 14E(1)

17 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. 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.

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

Is there a severe obstruction of sunlight?

19 Section 14E(2)(a)(i) 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,

20 The applicant contends that the Leyland Cypress trees severely obstruct sunlight to eight nominated windows. The windows are summarised as:

• W1 - bedroom; glass brick window; west facing;
• W2 - bedroom; west facing;
• W3 - bedroom; north facing;
• W4 - dining room; west facing;
• W5 - lounge room; small round window; south facing;
• W6 - lounge room; full glass; north facing opening onto balcony;
• W7 - family room; glass doors opening onto balcony; west facing;
• W8 - family room; north facing; opening onto balcony.

21 The applicant contends that windows W1-5 are in shadow for 8 hours a day and windows W6-8 are in shade from 2.00 pm in winter and 3.00 pm in summer. The applicant's position is that he wants the trees cut in order to restore the sunlight (and views) he and his wife enjoyed when they moved into their unit in 2002.

22 In the application claim form, the applicant states that the trees in groups A and C were about 2m tall and group B about 5m tall when he occupied his property in 2002; at the hearing, the applicant stated the trees in groups A and C were between 2 and 3m and group B probably about 8m tall.

23 The application does not specify which of the trees obstructs which window. The applicant did not provide any shadow diagrams or any time/ date stamped photographs to support his contentions.

24 During the hearing, each of the windows was inspected and the parties made their submissions.

25 Mr Johnson, counsel for the respondent, contends that most planning controls require at least three hours of sunlight to windows of living areas. In this regard, the north-facing windows W6 and W8 clearly obtain at least 3 hours and therefore the obstruction cannot be classed as severe. He also argues that it is not possible to achieve three hours of sunlight to all windows of a dwelling given orientation and other factors. Specifically, he considers it impossible for W5, a south facing window, to receive direct sunlight.

26 Mr Johnson drew my attention to sections of the design statement in the Statement of Environmental Effects. Relevantly on p 25 of that document: The northern orientation of the living rooms also means that the dwellings are arranged to enjoy good access to northern sun.

27 In regards to the bedroom windows, Mr Johnson submits that some sunlight will enter through W3 but while the trees on his client's land may severely block direct sunlight to W1 and W2, little weight should be given to this because firstly they are bedroom windows and not windows of living areas, and secondly they overlook the respondent's dwelling and hence there are issues of privacy.

28 With respect to W4, the dining room window, Mr Johnson contends that while the trees do obstruct some sunlight, the respondent's privacy should have greater weight. In support of this argument he referred to the approved plans for the SEPP 5 development that show that a privacy screen was supposed to be erected within the landscaped area directly opposite this window.

Findings - Sunlight

29 Throughout the hearing, the applicant and his wife commented on their desire for more 'light' into their dwelling. In Drewett v Best [2010] NSWLEC 1305 the Court has accepted that the word 'sunlight' used in the Act means 'direct sunlight' rather than simply 'daylight'.

30 The Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, 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 Act sets a high bar for the level of obstruction caused by the trees the subject of the application.

31 Absent shadow diagrams that might prove one way or another if the trees are severely obstructing sunlight to any or all of the windows, I must consider the layout and orientation of the applicant's dwelling and its relationship to the trees. Relevant too are things other than the trees that may contribute to any obstruction of sunlight.

32 As mentioned by Mr Johnson, in previous decisions, the Court has considered the usual development standards for solar amenity/ sunlight required by most councils for new developments [Ball v Bahramali [2010] NSWLEC 1334 at [32]]. Typically these controls require at least 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9.00 am and 3.00 pm.

33 Given the northerly aspect of W6 and W8, I am not satisfied that sunlight to these windows is severely obstructed by any of the trees the subject of the application. While there will be some obstruction to W7, I am not satisfied that the obstruction is severe.

34 W5 is a small south facing window and incapable of receiving direct sunlight.

35 Several trees in Group C opposite W4 have been pruned to about 5.3m. The applicant agrees that this has improved the amount of light received in the dining room. The hearing was held in the morning in late August. There is no evidence to demonstrate the amount of sunlight that W4 received when the applicant moved in and, absent any shadow diagrams, what was possible on the day of the hearing. I cannot be satisfied on the evidence before me that the obstruction is severe.

36 However, even if I were to find the obstruction severe, the lack of evidence is such that I could not be certain as to which trees are responsible and whether the pruning sought by the applicant would provide the necessary relief.

37 Similarly for the bedroom windows, W1, W2 and W3, while it is open for me to find that the obstruction of sunlight is severe, there is no evidence to establish a quantitative basis for the balancing of interests inherent in s 14E(2)(b). On a discretionary basis, given that the windows are bedroom windows and W1 and W2 face west, they are incapable of receiving morning sun - a time when sunlight through a bedroom window may be desirable. W3 faces north and while some sunlight will be obstructed by some of the trees on the respondent's property, it is also partly obstructed by the return of the building to the north. The size of the window is relatively small and it is set below the eye height of a person of average size. In the absence of shadow diagrams, it would seem that this window would not normally receive much direct sunlight even absent the respondent's trees.

38 With respect to the expert arboricultural reports obtained by the parties, Mr Paroissien is of the view that the trees in Group C that are currently around 5-6m tall are unlikely to be adversely affected by pruning to 4.5m however, pruning of taller specimens to that height would have greater impact because of the removal of large amounts of foliage and the creation of large wounds. He considers that the trees in Group B (currently about 12m tall) could only reasonably tolerate a reduction of 2-3 m - that is to a pruned height of 9-10m. Mr Paroissien stated on site that in his view, pruning to 8m would have an unacceptable impact on the trees' health.

39 As mentioned earlier, the applicant obtained an arborist's report from Mr James McArdle. This report was sought after the Court's Directions Hearing. The report was allowed into evidence despite some serious shortcomings including a failure to include an acknowledgment that Mr McArdle has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, a requirement of Court Direction 14 on Expert Evidence. The McArdle report focuses almost entirely on the potential for damage or injury arising from the trees, a matter of very minor relevance to applications under Part 2A of the Act. The pruning recommendations, such as they are, are so non-specific as to be of no assistance to the Court.

40 In conclusion, on the evidence before me, I am not satisfied that s 14E(2) is satisfied and therefore, the Court has no jurisdiction to make orders for the intervention with any of the trees the subject of the application in respect of sunlight. This element of the application is dismissed.

Is there a severe obstruction of views?

41 Section 14E(2)(a)(ii) states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land.

42 The applicant nominated six viewing points:

• V1 - from W2 - a west facing bedroom window;
• V2 - from W3 - a north facing bedroom window;
• V3 - from W4 - a west facing dining room window;
• V5 - from W6 - views to the northwest from the lounge room and the associated balcony; and
• V6 - from W7 - views to the west and northwest from the family room and associated balcony.

43 The applicant and his wife contend that when they moved into their apartment ten years ago, they had a pleasant outlook to the north, northwest and west. The views were of backyards, other trees, and the respondent's back lawn. They argue that the views to the west are now completely blocked by a solid wall of green hedge.

44 Mr Johnston submits that the level of obstruction to views from the balcony, lounge and family rooms (V5-6) would not meet the threshold level of 'severe'. He states that there is no evidence of the view that was lost and at most, it would be similar to the district views currently available to the north.

45 With respect to the view from the dining room (V4), this potentially looks directly over the respondent's land. Mr Johnson contends that the Statement of Environmental Effects (SEE) for the SEPP 5 development of which the applicant's unit is a part, stresses the need to minimise the impact of the development on the neighbours. In particular, he notes that the SEE refers to the 'good screen of established landscaping in most places' and the intent to supplement the screen with additional landscaping. Specifically, the SEE at p 27 identifies the properties to the west and the existing formal hedges of Photinia and conifers; it states the mature heights of these plantings are expected to reach five and eight metres respectively. Additional planting on the site to six metres was intended to ensure a strong buffer planting along the western boundary.

46 He contends that while the respondent replaced the Photinia with Cypress, the original developer, and subsequently the council, recognised the importance of the existing screen.

47 Mr Johnson cites the approved amended plans (Exhibit 2) that show a free standing lattice screen was intended to be integrated into the landscape opposite the dining room window of the applicant's unit. His contention is that the privacy concerns of the respondent were considered and conditioned when the applicant's development was approved. He also notes that the dining room is not a primary living area.

48 In regards to the view from the west/north facing bedroom windows, Mr Johnson again cites the SEE at p 25, which refers to the respondent's property having large windows on the eastern side. The SEE states:

In recognition of the fact that there are large windows on the eastern side of this residence there are only two windows proposed on the western elevation of the apartment building at the upper level..

49 While three windows were eventually installed, he argues that apart from one of the windows being glass brick, the top of the other bedroom windows is below the eye level of a person of average height specifically to limit any overlooking of the respondent's property.

50 In regards to the application in regards to views, Mr Johnson cites the Planning Principal on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. He contends that in this instance, there are no water views or views of icons, the views are best described as ordinary suburban district views and, as they are views across side boundaries, are more difficult to protect.

51 In summary, the respondent's position is that the loss of views form the main living areas in not severe, and in the event I find that the views from the dining and bedroom are severely obstructed, the respondent's concerns for privacy should outweigh the applicant's interests in having the trees pruned.

Findings - Views

52 It was clear from the on-site hearing that the orientation of the principal living areas (including the balcony) of the applicant's property is to the north. The views to the north are of dwellings on the other site of the creek through scattered remnant trees and other vegetation on the applicant's land and other nearby properties.

53 The applicant maintains that when standing in certain parts of the living areas, the view to the northwest is severely obstructed by the respondent's trees. In Haindl v Daisch [2011] NSWLEC 1145 at [26] Moore SC and Hewett AC found:

26However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

54 While the view to the northwest from the balcony and the lounge and family rooms is partly of the Cypress in Group A, the canopies of oaks on the respondent's property and eucalypts on other properties are also part of the view. No evidence was adduced to indicate what view the applicant had when he purchased the property. However, as stated above, the principal views are to the north and these are uninterrupted by the respondent's trees. When considered holistically, there is no severe obstruction of the views from V5 and V6 as a consequence of the respondent's trees and, as s 14E(2)(a)(ii) is not satisfied, no orders can be made for any interference with them.

55 In regards to the remaining viewing points, while I find that the respondent's trees do severely obstruct views from the applicant's dwelling, I do not find that the severity and nature of the obstruction is such that the applicant's interest in having the trees pruned outweighs other matters that make such pruning undesirable or necessary. My reasons follow.

56 I agree with Mr Johnson that V1 and V2 are from bedroom windows. As the Court has often referred to Tenacity, views from bedrooms are generally afforded far less weight than views from living rooms and views across side boundaries are more difficult to retain than views across front or rear boundaries. I also agree that the height of the windows is a deliberate action by the developer to limit overlooking of the respondent's property. I also find that even if the trees were pruned to the height nominated by the applicant, apart from potential damage to the trees (as discussed above), the view from V1 would be of sky and the view from V2 would still be of the conifers.

57 With respect to the dining room window, the same reasoning applies although the window is full-sized. It is clear from the approved plans that a privacy screen was intended to be placed opposite this window, and despite the fact that the screen was not installed, the respondent's trees take on that screening role. The proposal in the SEE stresses the retention and reinforcement of the vegetation on the western side of the applicant's property. As with the views from the living areas, there is no evidence to illustrate the actual views the applicant contends he has lost.

58 Therefore as s 14E(2)(b) is not satisfied for viewing points V1, V2 and V3, the Court has no jurisdiction to make any orders for any interference with the trees.

Conclusions and Orders

59 Given the lack of evidence to support the applicant's contentions that the row of Leyland Cypress trees on the eastern boundary of the respondent's property severely obstructs sunlight to his dwelling and views from his dwelling, the Court cannot be satisfied of either the severity of the obstruction or that the applicant's interests outweigh any other relevant matters. Therefore as s 14E(2) is not satisfied, the Court has no jurisdiction under Part 2A to make any orders for any interference with any of the trees the subject of the application.

60 The Orders of the Court are:

(1) The application is dismissed.

(2) Exhibits 2, 3, 4 and 5 are returned.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 07 September 2012