Land and Environment Court New South Wales

• Medium Neutral Citation: King v Silcocks & anor [2012] NSWLEC 1297
• Hearing dates: 25 October 2012
• Decision date: 25 October 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; obstruction not severe; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson and anor [2009] NSWLEC 1148; Johnson v Angus [2012] NSWLEC 192; Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: Mr Brendan King (Applicant); Mr Mark Silcocks (First respondent); Ms Dale McCarthy (Second respondent)
• Representation: Mr Brendan King (Applicant in person); Mr Mark Silcocks (Respondent in person)
• File Number(s): 20811 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: Mr King has owned a residential property in Double Bay since 1996. He says that trees have grown up on a neighbouring property and now obstruct sunlight to windows of his dwelling. He has applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of one tree and pruning of six others to a height of 2.3 metres.

2 Mr Silcocks and Ms McCarthy own the land on which the trees grow. They had six of the trees pruned about one month ago. They wish to retain the trees and avoid further pruning as they value visual screening between properties provided by the trees.

3 For orders to be made under Part 2A of the Act, the Court must first be satisfied, at s 14A(1), that the trees are planted so as to form a hedge; and that they rise to a height of at least 2.5 metres. Secondly, the Court must be satisfied, according to s 14E(2)(a)(i), that the trees are severely obstructing sunlight to a window of the applicant's dwelling (this application does not concern views). Finally, according to s 14E(2)(b), the Court must also be satisfied that the severity and nature of the obstruction is such that it outweighs any reasons not to interfere with the trees.

4 The hearing took place onsite, allowing observations of the trees and of the potential for them to obstruct sunlight to windows highlighted in the application.

Do the trees form a hedge?

5 The trees are:

• T1, a Washington Palm a few metres from the rear boundary;
• T2-T7, which form a line close to and parallel with the rear boundary and comprise, according to the application, three Viburnums and three Lilly Pillies.

6 According to the applicant, T1 is older than the other six trees. It is around 15 metres tall with a small crown atop a single stem, as is the nature of most palms. Bringing my own expertise to the matter, I agree that this tree is older than the others. It is also physically separate from the others.

7 In Johnson v Angus [2012] NSWLEC 192, Preston CJ determined that, for the trees to satisfy s 14A(1)(a), they must have been planted with the aim of forming a hedge and that, furthermore, the trees must continue to form a hedge. There is no evidence that T1 was part of a hedge planting. Nor can it be considered to be part of a hedge in its current situation: it is not part of the linear arrangement of the other six trees and its crown is physically separate in space. As T1 is not planted so as to from a hedge, the application for any orders regarding this tree is dismissed.

8 Trees 2-7 are planted in a linear fashion and appear to have been planted close together with the aim of providing visual screening along the rear boundary of the respondents' property. Until they were pruned a month ago they were, according to Mr King, between 5 metres and 12 metres tall. Since being pruned they are now all approximately of the same height, up to 4.85m, and form a dense continuous screen along the boundary. They form a hedge now and I accept that they were planted so to form a hedge.

Obstruction of sunlight

9 Mr King says that, before being pruned, the trees obstructed sunlight for several (perhaps five) months of the year to windows facing northwest and northeast at the rear of his dwelling. He says that this affects the health of his family. He also says that the lack of sunlight to the courtyard prevents laundry drying on the clothesline, plants from growing and leads to mould build-up on the paving. He says mould can lead to a slip hazard. He further states that the trees blocked sunlight to his solar panels. However I note that s 14E(2)(a)(i) refers to obstruction of sunlight to windows only and does not include paving, gardens, clotheslines or solar panels. Also any application for orders due to the risk of injury would need to be made under Part 2 of the Act.

10 I accept that Mr King's concerns about sunlight access may have been more substantial before the trees were pruned. He submitted shadow diagrams with his application that showed some obstruction of sunlight to his windows. However as Fakes C discussed in Tooth v McCombie [2011] NSWLEC 1004 (see paragraphs 14 and 17) the Court must decide the matter based on the situation as it is on the day of the hearing.

11 Mr Silcocks submits that any sunlight obstruction is now only to the lower parts of windows and is likely to be for only a small part of the day during a few mid-winter weeks. Despite the drawing (Exhibit C) submitted by Mr King, demonstrating the existing shadow line from the 5-metre tall hedge on 21 June, I accept Mr Silcock's submissions for the following reasons.

12 Windows W1-W7 are full height windows to the living area. They face northwest. According to Mr King's drawing, on 21 June at 1pm the lower part of the windows is in shade from the hedge. The drawing does not show solar movement throughout the day in a plan view, nor does it show actual locations of shadows of the trees or shadows of other structures at 1pm. Based on the site view, it is apparent that each window in turn would only be shaded during a part of the morning. Furthermore, other things would contribute to shading of those same windows during the morning, notably a large building to the northeast at 23 Court Road and a large gum tree further distant. Other trees too would contribute to some shading, albeit during different times or seasons. I find that trees T2-T7 on their own would only contribute a small part of the total shadowing to these windows, and even this would be limited to a short period in mid-winter, when the sun is at its lowest in the northern sky. I am therefore not satisfied that the obstruction of sunlight caused by these trees is severe.

13 Window W8 is to the bathroom. It is set further back from the rear boundary of Mr King's property. Based on observations during the site view, along with the drawing (Exhibit C) submitted by Mr King, it does not appear that the trees now cause any obstruction of sunlight to this window.

14 Windows W9-W11 face northeast. As for W1-W7, the trees may contribute to some obstruction of sunlight for a short period during the morning in mid-winter, but other things also cause some shading during those mornings. The hedge would now only be a minor contribution to total shading.

15 The Act requires the obstruction to be severe, but nothing before me satisfies me that, at their current height, trees T2-T7 form a severe obstruction of sunlight to windows of Mr King's dwelling. The Court's jurisdiction under Part 2A is therefore not engaged regarding any of the trees.

16 I appreciate Mr King's concerns that the trees will grow and require further pruning to prevent a future increase in their contribution to shading. As noted above, the Court can only make orders based on the situation at the time of the hearing. However if the situation changes another application can be made to the Court. The basis for such an application is outlined in the case of Hinde v Anderson and anor [2009] NSWLEC 1148. I also note that Mr Silcocks says he sees the trees' current height as being suitable for maintaining visual screening.

Conclusion

17 As a consequence of the above the orders of the Court are:

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 25 October 2012