Land and Environment Court New South Wales Medium Neutral Citation: Kelly & anor v Dehnert & anor [2015] NSWLEC 1173 Hearing dates: 20 May 2015 Date of orders: 20 May 2015 Decision date: 20 May 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part see paragraph [27] Catchwords: TREES [NEIGHBOURS] Hedge, obstruction of sunlight, obstruction of views. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: J & M Kelly (Applicants) R & JA Dehnert (Respondents) Representation: Applicants: Mr J Kelly (Litigant in person) Respondents: Mr S Leary (Solicitor), Haille Paine Solicitors File Number(s): 20154 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Bundanoon against the owners of trees growing on an adjoining property. 2. The trees in question are a staggered row of 72 Pinus radiata (Monteray Pine) growing adjacent to the northern boundary of the applicants' property. 3. The applicants are seeking orders for the removal of all of the trees on the basis that the trees severely obstruct sunlight to windows of their dwelling and severely obstruct views from their dwelling. 4. The respondents oppose these orders as the trees are valued for their role as a windbreak/ shelterbelt. 5. In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court's power to make orders under s 14D is engaged. 6. The first of these tests is whether the trees are planted so as to form a hedge. The trees were small seedlings when the applicants bought their land in 1992 and are currently about 27m tall. The trees are numbered from east to west. The spacing between the trees varies from about 1m to 8m or thereabouts and effectively appear as linear groups along the boundary. 7. The respondents do not contest this jurisdictional test, and in my opinion, the trees satisfy the requirements of s 14A and the trees the subject of the application are trees to which the Part applies. 8. The next test is whether the applicants have made a reasonable effort to reach an agreement with the owners of the trees. Correspondence in the application claim form demonstrates these efforts and therefore s 14E(1) is satisfied. 9. Of relevance 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. Views 1. The applicants contend that they selected their property on the basis of its views and excellent solar access. The dwelling is situated on the land and designed to take advantage of the rural views to the north. 2. The view the applicants maintain they had the benefit of when they purchased their land is illustrated in attachment 3 of the claim form. The photograph is of rural paddocks and grazing land with small distant hills and scattered individual and small clumps of native trees. The Pines are too small to be visible in the photograph. 3. At the time of the hearing, the view of the paddocks from the nominated windows, including the principal living areas of the dwelling, is a filtered view through the Pines. Part of the view includes a Christmas tree plantation on the respondents' land to the north-east of the applicants' property. The angle of view is also limited to the north-west by conifers planted on the applicants' property. It was agreed during the hearing that not all of the 72 trees are within the critical viewing area. 4. The applicants stated that the view loss was more severe before they undertook the removal of some lower branches. It remains their contention that the trees still severely obstruct a highly valued view. 5. Mr Leary, for the respondents, submits that when tested against the assessment process on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140, the trees do not severely obstruct the views and the Act has set a high bar in terms of the extent to which a view must be obstructed. Findings – views 1. While I acknowledge that the applicants value the views they had 23 years ago when they purchased their land, I accept Mr Leary's submission that the trees are not severely restricting views from the applicants' dwelling. It is not difficult, as a visitor to their property, to observe the paddocks, hills and grazing cattle through the trees. Overall, it is a rural vista not atypical of the southern highlands. 2. The Planning Principle in Tenacity to which Mr Leary refers considers the quantitative and qualitative aspects of assessing impacts on views. While the considerations of iconic structures and water views are not relevant, the views across the rear boundary are obtained from the principal living areas of the applicants' house, from both sitting and standing positions. The qualitative approach is generally more useful, including the system given in the Principle which rates the impact on a scale from negligible, minor, moderate, severe, to devastating. I consider the impact on views arising from the trees the subject of this application to be in the moderate range and not severe. 3. Therefore as s 14E(2)(a)(ii) is not satisfied, no orders can be made for any intervention with the trees on the basis of views. Sunlight 1. The applicants provided evidence that their dwelling was designed for passive solar heating and was deliberately orientated to take advantage of the solar access at the time they purchased their property. 2. The applicants contend that morning sun from approximately 7.00 am until about 10.00am (in mid-winter) is severely obstructed to the north and north-east facing windows of bedrooms and main living areas between May and August. The trees responsible for this obstruction are the first two 'groups' of trees at the eastern end of the row of Pines. Group 1 comprises 20 trees and Group 2, a short distance to the west is a group of 9 trees. 3. Mr Leary submits that as the applicants have not provided shadow diagrams, the evidence is insufficient to engage the Court's jurisdiction. Findings – sunlight 1. Notwithstanding the fact that the applicants did not provide shadow diagrams, I am satisfied on the basis of the photographs in the claim form and on knowledge of the angle of the winter sun, that the trees in groups 1 and 2 severely obstruct morning sunlight to the north-east and north-facing windows of the applicants' dwelling. To that extent I am satisfied that s 14E(2)(a)(i) is met. 2. In considering the balancing of interests inherent in s 14E(2)(b), it is useful to consider the relevant discretionary matters in s 14F of the Act. 3. While the trees were present when the applicants purchased their land, the trees were very small and not discernible in the photograph taken of the view to the north. The trees were planted as a windbreak and to provide shelter for stock. The respondents contend that the trees also provide protection for the Christmas tree plantation; although the applicants dispute the efficacy of the trees as a windbreak. While the respondents, in their correspondence with the applicants, raised privacy as a concern, this is no longer pressed. With the arboricultural expertise I bring to the Court, reducing the height of the trees would likely compromise their health and structure and would reduce their effectiveness as a windbreak. 4. As previously mentioned, the applicants' dwelling is designed for passive solar heating which relies to a large extent on the morning winter sun to build up the heat stored in the slab and structure. While the Court has sometimes applied the usual planning controls which generally require between 2-4 hours of sunlight between the hours of 9.00 am and 3.00 pm on the winter solstice, the particular circumstances of each matter must be assessed on the merits. 5. In this matter I consider that in balancing the interests of the parties, some intervention is warranted but in a manner that retains the integrity of the windbreak. Again with the expertise I bring to the Court, I consider that selective removal of individual trees within Groups 1 and 2 to provide a spacing of approximately 4m between trees will allow more morning sunlight to the applicants' windows but maintain the function of the windbreak. 6. On this basis I am satisfied that the Court's jurisdiction to make any orders it thinks fit, under s 14D, is engaged. Orders 1. The Orders of the Court are: 1. The application is upheld in part. 2. Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove trees in Group 1 and Group 2 to create a spacing of one tree every 4 metres. Trees 1, 20, 21 and 29, being the trees at each end of each group, are to be retained. Trees to be removed are to be selected by the arborist. The trees are to be reduced to stumps no more than 200mm above ground; the stumps are not be completely removed or poisoned. 3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The applicants are to provide all necessary access, on reasonable notice, for the purpose of quoting and or the safe and efficient carrying out of the works in (2). _________________________ Judy 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: 22 May 2015