Land and Environment Court New South Wales

• Medium Neutral Citation: Nicolson v Fekete & anor [2012] NSWLEC 1281
• Hearing dates: 27 September 2012
• Decision date: 09 October 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning ordered on an annual basis

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction of views; balancing of interests
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: Applicant: Colin Nicolson; Respondents: Attila & Janene Fekete
• Representation: Applicant: Mr C Nicolson (litigant in person); Respondent: Mr C McCooe (solicitor); Respondent: McCooe & McCooe Solicitors
• File Number(s): 20725 of 2012

Judgment

1 COMMISSIONER: The applicant in these proceedings has owned his ground floor unit in Neutral Bay since 1994. In 2001, the respondents planted a row of eight x Cupressocyparis leylandii (Leyland Cypress) in order to reduce the visual impact of the applicant's unit block from their property and to provide a degree of privacy for residents of both properties.

2 The applicant contends that the trees now severely obstruct sunlight to windows of his dwelling and severely obstruct views from his dwelling. He has made an application under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the trees or, in the alternative, the pruning of the trees to an appropriate height and their subsequent maintenance. While the application form did not specify what an 'appropriate' height may be, during the hearing the applicant nominated a maximum height of 2.5m as a height he would be satisfied with.

3 The respondents have proposed alternative orders suggesting pruning to a height of 3m within 60 days of the date of the orders with both parties contributing 50% of the cost.

4 The trees are planted on the southern boundary of the respondents' front garden. At the hearing they were measured to be, on average, about 4.3m high.

5 In applications made under Part 2A of the Act, there are a number of jurisdictional tests to be satisfied before any orders can be considered.

6 The first test is in s 14A(1) that requires that in order for the Act to apply, the trees must be planted so as to form a hedge and, rise to a height of at least 2.5m. There is no dispute between the parties that the trees form a hedge for the purpose of the Act: a position with which I concur.

7 The next relevant test is s 14E(2) which 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, 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.

Is there a severe obstruction of sunlight?

8 There are four nominated four windows on the northern side of the applicant's dwelling: window 1 (W1) is in a bedroom/study; W2 and W3 are lounge room windows; and W4 is a frosted bathroom window.

9 The applicant contends that sunlight to these windows is blocked for about 4-5 hours per day between April and September. Photographs taken on 29 and 30 June 2012 at hourly intervals from about 9.00am until 3.00pm show the extent of shading as a consequence of the trees. The silhouettes on the wall also show the contribution of a Chinese Elm tree in the respondents' front garden as well as the shadow cast by parts of the respondents' dwelling.

10 Mr McCooe for the respondents concedes that while the trees do obstruct sunlight to the applicant's dwelling, he contends it is not a severe obstruction but rather the trees allow filtered light into the applicant's dwelling. Mr McCooe submits that the alternative orders achieve a reasonable height of 3m that will allow more sunlight into the applicant's dwelling and maintain his client's privacy. He further argues that the applicant has only resided in his unit for 5 months of the 18 years he has owned it and, during the period the respondents have owned their property, none of the tenants have ever complained about any lack of sunlight.

Findings

11 On the evidence of the photographs tendered by the applicant, I am satisfied that the trees do severely obstruct sunlight to the nominated windows of the applicant's dwelling. Therefore as s 14E(2)(a)(i) is satisfied, I must consider s 14E(2)(b); this requires consideration of relevant matters in s 14F.

12 The relevant considerations are:

• The trees concerned are planted along the respondents' southern boundary fence, directly opposite the applicant's unit block (s 14F(a)).
• The unit block was there before the trees were planted however it appears that these plants replaced other trees and shrubs (s 14F(b)).
• The trees have reached their current height during the period the applicant has owned his property (s 14F(c)).
• With the expertise I bring to the Court, I would consider that pruning the trees to about 3m would be at the limit of acceptability in regards to the impact of that pruning on the health and appearance of the trees in question. Reducing the trees to 2.5m would in my opinion be too much and in that case, removal would be the better option (s 14F(k)).
• The respondents contend that the trees contribute to their privacy and the privacy of the residents of the applicant's unit and the unit above. In particular they state that the hedge obscures the view of their front door from the applicant's unit (being the closest unit (s 14F(l)).
• The respondents have had the trees pruned twice since the applicant brought the issue to their attention (s 14F(n)).
• The photographs show that the windows are in shade from 9.00am until 3.00pm around the shortest day of the year. (s 14F(o))
• The trees are an evergreen species (s 14F(p)).
• The sunlight is obstructed from a second bedroom, the living room and a bathroom. The Court has given less weight to bedrooms than living rooms and little weight is given to bathrooms; the weighting reflects the time one would reasonably spend in each of the rooms. This reflects the requirements for solar access found in most council development control plans; these generally require at least 3 hours of sunlight to at least 50% of the area of living room windows on 21 June (being the shortest day of the year) (s 14F(r)).

13 In the absence of any shadow diagrams indicating the impacts of various heights of the trees on solar access, I consider a height of 2.9 m would be a reasonable height to which the trees can be pruned in order to allow regrowth to 3.1m; a height at which the trees could be maintained. The photographs show the shadows to be just above the top of the windows. It stands to reason that reducing the height of the trees by about 25% - 30% would significantly improve the amount of winter sunlight reaching the applicant's windows.

Is there a severe obstruction of a view?

14 There are four nominated viewing points through each of the nominated windows. View 1 (V1) from the second bedroom/study was said to be a view of the respondents' dwelling and front yard; V2 and V3 - a view to the northeast of the respondents' dwelling, front yard and the streetscape; and V4, when W4 is open, of the respondents' dwelling, tree tops and the sky. The applicant contends that these views are all severely obstructed and the view is now of the mostly brown foliage of the trees; a consequence of pruning in August/ September 2011 and more recently in April 2012.

15 Photographs taken from the upstairs unit, and included in the application, indicate the extent of the views that were previously available to the applicant.

16 In assessing the severity of an obstruction of a view as a consequence of trees the subject of an application under Part 2A, the Court has often considered the steps within the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140.

17 The first step considers the type of views affected; the second step considers the part of the dwelling from which the views are obtained, whether they are views seen from sitting or standing positions, and whether they are across side or front/rear boundaries; and the third relevant step provides a qualitative assessment of the extent of the impact of any obstruction for the whole of the property and not just for the view that is affected. In general, whole views of iconic structures or the land/water interface from living rooms from standing positions across front/rear boundaries are highly valued. Whereas, partial views/ district views from seated positions across side boundaries and from rooms with little usage are less 'valuable' and may be more difficult to protect.

18 The views described by the applicant are views directly into the respondents' dwelling and front yard across the side boundary. From some standing and perhaps some seated positions in the living room (V2/V3) there would be oblique views across the respondents' front garden to the street.

19 The Court has placed little weight on views from bathrooms as little time is spent in them and generally, as in this case, bathroom windows are small with some kind of screening treatment: V4 is through the top of a frosted bathroom window. Similarly views from bedroom windows are given less weight. In this case, V1 is from a second bedroom/study; this room is directly opposite the respondents' dwelling.

20 The applicant complains that the view from these windows is now of brown foliage created by the pruning of the hedge to the fence line. Mr McCooe contends that this is something of the applicant's own making as the pruning was in direct response to a complaint made to the respondents.

Findings

21 I agree that the views from the applicant's dwelling are now severely obstructed by the respondents' trees. As s 14E(2)(a)(ii) is satisfied, I must consider s 14E(2)(b) and s 14F to determine what, if any, orders should be made under s 14D.

22 For the reasons outlined in paras [16] to [20] above and taking into account the considerations in [12], I do not consider that there should be any further intervention with the trees on the basis of obstruction of views. While the view across the respondents' front lawn and to the streetscape may have been pleasant, they are relatively ordinary views from a limited part of the applicant's dwelling and across a side boundary. The trees provide privacy to the respondents as well as softening the visual impact of the applicant's dwelling. I agree with Mr McCooe that the appearance of the foliage is a consequence of the applicant's request for pruning, and while it is not as attractive as a fully green hedge, in itself it provides no reason for ordering the removal of the hedge.

23 Therefore, the application with respect to obstruction of views is dismissed.

Conclusions and orders

24 As discussed above, I am not satisfied that the trees the subject of this application should be removed. However, I am satisfied that the obstruction of sunlight is severe and that some intervention is required. As stated in [13], orders will be made for the pruning of the trees to a height of 2.9m. This will enable some regrowth/ recovery of the top of the trees and future maintenance will be to a height of 3.1m. As the applicant wishes to maximise the sunlight in winter, an order will be made for the maintenance pruning to be within the period from 15 April to 15 May each year for such time as the trees remain.

25 I see no reason to vary the respondents' suggested timeframe of 60 days from the date of these orders. No Court orders will be made for any trimming of the sides of the hedge - that is at the discretion of the respondents. Similarly, should the respondents wish to maintain the hedge at times other than that specified in the orders, this is at their discretion.

26 However, as usual in these matters, the costs of carrying out the orders are to be at the respondents' expense.

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

(1) The application to remove the trees is dismissed.

(2) Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist or horticulturist with appropriate insurance cover to reduce the eight Leyland Cypress to a height of 2.9 metres above ground level. Clean cuts must be made.

(3) All work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Between 15 April and 15 May each year, the respondents are to engage and pay for an AQF level 3 arborist or horticulturist with appropriate insurance cover to prune any regrowth of the Leyland Cypress trees to a height of 3.1 metres above ground level. Clean cuts must be made and the work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry

(5) Order (4) is to commence in 2013 and annually until such time as the trees are removed.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 11 October 2012