Land and Environment Court New South Wales Medium Neutral Citation: Cavalier v Young [2011] NSWLEC 1080 Hearing dates: 4 April 2011 Decision date: 04 April 2011 Jurisdiction: Class 3 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]; Hedge; obstruction of sunlight; adjoining land; what constitutes a hedge. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152 Salisbury v Harrison & anor [2011] NSWLEC 1069 Wisdom v Payne [2011] NSWLEC 1012 Category: Principal judgment Parties: Mr J Cavalier (Applicant) Mrs P Young (Respondent) File Number(s): 20958 of 2010 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Abercrombie Street West Wollongong against the owner of trees growing on a property in Valetta St. 2The applicant is seeking the pruning of a number of trees to a height approximately half their current size. These orders are sought on the basis that the trees severely obstruct sunlight to 4 windows of a sunroom at the rear of the applicant's dwelling. The applicant contends the obstruction is severe during autumn and winter afternoons. 3The respondent does not want the trees pruned as she value the amenity of what she describes as her "small piece of bushland". The trees were planted about 15 years ago. Adjoining land 4Before considering the trees and any obstruction of sunlight they might cause, the issue of 'adjoining land' was raised in the respondent's written evidence. It is appropriate to consider this jurisdictional matter as it goes to the making of an application under s 14B. 5Section 14B of the Act states: An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land (my emphasis). 6The question of 'adjoining land' was discussed in the first case heard under the Trees Act in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 albeit in the context of a property across a road. Similarly, Preston CJ in Robson v Leischke [2008] NSWLEC 152 addresses 'adjoining land' at [157]. 7In the matter before the Court, the respondent's property is diagonally to the rear or northwest of the applicant's property. The only common point between the two properties is a corner post. I am satisfied that despite the limited physical connection between the two properties, they are adjoining and the matter can proceed to the next step. Relevant background 8About 15 years ago, the respondent replaced a cottage garden at the rear portion of her back garden with native trees and shrubs. She said that this was to save water and encourage native birds. 9It appears, from oral evidence on site, that the applicant visited Wollongong City Council (the council) in 2007/ 2008 regarding the obstruction of sunlight as a result of the respondent's trees. The applicant had heard about the existence of the Trees Act and apparently prepared material in order to make an application. However he was rightly informed that at that stage, the Act did not apply to obstruction of sunlight. 10According to the respondent's evidence, in 2008 she received a letter from the Community Justice Centre asking her to attend a mediation session with the applicant. This was requested because of shading of the applicant's property by the respondent's trees. This mediation was confirmed at the hearing although the applicant referred to the mediation as a meeting with council; it was somewhat confusing as to who met with who and when. A mediation session was held however there was no agreement reached and the matter remained unresolved. 11However, following the mediation in 2008, the respondent contacted Wollongong City Council and asked for her trees to be assessed. Council's Tree Management Officer, Mr Clancy, inspected the trees and advised that 4 of the trees growing along the rear boundary fence could cause problems in the future. Approval was given for the removal of those 4 trees - 2 Eucalypts, 1 Acacia and 1 Melaleuca, and for the selective pruning of a co-dominant leader on another Eucalypt. The majority of this work was carried out in 2008 with the exception of the removal of one eucalypt. Another application was made in 2011 for its removal. This was granted and the tree was removed. 12In the diagram in the application the applicant indicates 9 trees he asks the Court to consider. A photograph taken in 2007 is included in the application. This photograph shows the trees along the respondent's rear fence prior to their removal, the remaining 'application' trees, as well as several other trees not indicated on the diagram. 13During the site inspection prior to the hearing in Court, the numbering of the trees in the diagram was checked against the remaining trees. It was agreed that trees 2, 3, 4 and 5 have been removed. It was also clear that trees 1 and 8 have been pruned. 14What remain are trees 1, 6 and 7 as a small group in the north-eastern corner and trees 8 and 9 towards the centre/southern portion of the respondent's property. All remaining 'application' trees are species of Eucalypts. As mentioned above, there are also several other trees in this planting including 3 other Eucalypts of a similar size to that of the 'application' trees located upslope and further to the west. These are not indicated on the diagram. Similarly, there is a Leptospermum near tree 7 and a Melaleuca, Hakea and a Jacaranda some metres from the south-eastern corner of the respondent's property - none of which are included in the diagram and therefore not considered as part of the application. Are the trees a 'hedge'? 15It is appropriate to consider the jurisdictional test in s 14A(1) of the Act, that is, do the remaining trees form a hedge. This section 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). 16It is accepted that all of the trees are planted and are in excess of 2.5 m high. Putting the applicant's case at its highest, I am prepared to accept that trees 1, 6 and 7 are close enough to one another and arranged in a way (a triangular formation) that satisfies s 14A(1). That is, this group is a 'hedge' for the purpose of the Act. This is somewhat consistent with a finding in Salisbury v Harrison & anor [2011] NSWLEC 1069 where a triangularly arranged group of three trees was deemed to be a hedge for the purpose of the Act. I estimate the height of these trees to be between 14 and 16m high. Tree 7 is the closest tree to the applicant's property - approximately 11m from the corner post. 17With respect to trees 8 and 9, they are 4 m apart and when other nearby trees are considered, the effect is of a staggered or random planting. Apart from their identification in a diagram that omits other nearby trees, there is nothing in their spatial relationship to one another or with a fence line that would give the appearance of a hedge even in the relatively flexible and permissive way in which the Court has interpreted s 14A(1) in cases heard to date. Rather, these trees appear as individuals in a naturalistically arranged larger copse of trees. 18This finding is consistent with Wisdom v Payne [2011] NSWLEC 1012 where Moore SC and Hewett AC at [45] stated the following: ...We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in the ordinary English understanding of the word, would be perceived to be a hedge. 19Therefore, I am not convinced that these 2 trees satisfy the jurisdictional requirements in s 14A(1) and the application with respect to these trees is dismissed. Windows and sunlight 20The 4 windows are on a sunroom at the rear of the applicant's dwelling. Windows 1 & 2 face north and windows 3 & 4 face west. The applicant did not give precise answers to questions 4 and 5 in the Part 2A application form regarding the number of hours per day of sunlight lost to each window nor were any shadow diagrams provided. 21Based on the oral evidence given on site and during the hearing, the applicant contends that windows 1 and 2 lose sun in winter from about 12.30 pm and windows 3 and 4 from about 1.30 pm. 22Under s 14E(2)(a)(i): (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or If a severe obstruction is found, the Court must then consider s 14E(2)(b) which states: (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. This balancing of interests requires consideration of matters in s 14F. 23In this matter I am not satisfied that there is a severe obstruction of sunlight to windows 1 and 2. These face north and the respondent's trees are to the northwest. These windows, by the applicant's admission, receive sun until at least 12.30 pm in winter. There was nothing on site to suggest that the morning sun is obstructed. At 9.30 am on the day of the hearing the windows were receiving sunlight. 24As determined in several matters heard by this Court, including Ball v Bahramali [2010] NSWLEC 1334, the typical council planning controls that apply to solar access in development applications can reasonably be applied to applications under Part 2A of the Trees Act. These controls typically require at least 3 hours of sunlight to at least 50% of the area of living room windows between 9.00 am and 3.00 pm on 22 June, that is, the shortest day. 25I am satisfied that that windows 1 and 2 would receive at least 3 hours per day in mid winter. Similarly, I am not satisfied that the shadow cast from trees 1, 6 and 7, being the only trees in the application that meet the jurisdictional test in s 14A(1), could be singled out as causing any significant loss of sunlight given the other trees on the site that were not nominated or which do not satisfy s 14A(1). I also note that there is a dwelling to the north of the applicant's property and there is a large palm tree in the rear garden of this property in the vicinity of trees 1, 6 and 7. These objects may also restrict sunlight when the sun is low in the winter sky. 26With respect to windows 3 and 4, again putting the applicant's case at its highest, I am prepared to consider that there is a severe obstruction of sunlight to them. However the extent to which that obstruction is due to the trees in question is unclear. S 14E(2)(a) requires a nexus between the trees concerned and the severe obstruction of sunlight. However, in giving the applicant the benefit of the doubt, I will progress to the next stage of the determination and consider the matters in s 14F. 27Relevant to this matter are the following cluses: (a) The trees, now limited to numbers 1, 6 and 7 are on adjoining land and are no closer than about 18 m from windows 3 and 4. (b)(c) The trees were planted about 15 years after the construction of the sunroom and have grown to their current height during that time. (g) The trees are likely to contribute to the local ecosystem and to biodiversity; this is a reason for their planting. (h)(i)(l) The trees contribute to the natural landscape and scenic value of the property on which they are growing and to the locality. They can be seen from nearby properties and streets and therefore have intrinsic value to public and private amenity. (k) Impact of pruning: Trees 1, 6 and 7 have the typical form of maturing Eucalypts with generally terminal foliage and substantial distances between branches. Given their height and branch arrangement, reduction pruning techniques to achieve the extent of reduction requested by the applicant could not be carried out in accordance with AS4373:2007 Pruning of Amenity Trees . Any reduction to approximately half their current height would result in the proliferation of weakly attached epicormic shoots that may result in structural problems. While some lesser reduction may be possible in the short term, ongoing crown reduction of Eucalypts is generally impractical. (m) Any other obstructions: As previously stated, there is a Cocos Palm of some stature at the rear of the adjoining property near trees 1, 6 and 7 between those trees and the applicant's property. There is a mature Juniperus sp to the west on the property adjoining both the applicant's and the respondent's properties. There is a mature Brush Box on the diagonally adjoining property to the southwest. These are located upslope of windows 3 and 4 and are of a size that would cast a reasonably long shadow in winter afternoons. (n) The respondent has removed 4 trees along her rear boundary fence and has pruned at least 2 others. There are gaps between and through the canopies of the trees. The trees removed were in a row and would most likely have satisfied the test in s 14A(1). (o) As previously mentioned, the applicant was unable to provide precise details as to how much sun was lost over which part of the day. This consideration of the matter is based on giving the applicant the benefit of the doubt. (p) The trees are evergreen and therefore provide shade all year round. (s) Other matters: Of relevance is the slope and aspect of the site. The applicant's property is on a moderately sloping, east facing slope. Windows 3 and 4 are approximately 15m down-slope of the rear fence and the ground level at the rear of the house is about 1.5m lower than ground level at the rear boundary. Valetta Street is upslope and to the west, hence dwellings and associated trees at the rear of properties on the eastern side of Valetta Street, as well as those on the western side, will inevitably interfere with afternoon sun in winter when the sun is lower in the sky. Findings 28After consideration of the factors in S 14F and the evidence, such as it was, on site, I make the following findings. 29It is clear that the totality of the trees growing on the respondent's property will have contributed to a loss of autumn and winter afternoon sun to the applicant's windows. However, the Act requires consideration of the trees subject to the application, which in this case, is not the totality of the trees. Of the 'application' trees remaining, only 3 meet the jurisdictional test in s 14A(1) and this is putting the applicant's case at its highest. Taking into account the matters in s 14F(m) and (s), I cannot be satisfied that the group of 3 trees, taken by itself as required by s 14E(2)(a)(i), severely obstructs sunlight to windows 3 and 4 of the applicant's dwelling. Therefore as the test in s 14E(2)(a)(i) is not satisfied, the application should be dismissed on that basis. 30However, even if I were to conclude a severe obstruction to windows 3 and 4 by trees 1, 6 and 7, I would determine s 14E(2)(b) to be not satisfied. While the applicant is clearly unhappy with the loss of afternoon sun in autumn and winter, the radical pruning or even removal of these trees cannot be justified, principally as there is no utility in doing so given the other trees upslope and the natural slope of the land. 31The Act requires specific jurisdictional tests to be met. In this case several key sections have not been satisfied and as a result the Court cannot make the orders the applicant seeks. Therefore as a result of the foregoing, the Order of the Court is: (1)The application is dismissed. J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2011