Ditton v Barker & anor [2015] NSWLEC 1274

Land and Environment Court New South Wales

Medium Neutral Citation: Ditton v Barker & anor [2015] NSWLEC 1274 Hearing dates: 22 July 2015 Date of orders: 22 July 2015 Decision date: 22 July 2015 Jurisdiction: Class 2 Before: Fakes c Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ms S Ditton (Applicant) Mr R Barker (First Respondent) Ms J Martin (Second Respondent) Representation: Applicant: Ms Ditton (Litigant in person) Respondents: Mr Barker and Ms Martin (Litigants in person) File Number(s): 20336 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant in this matter occupies a property in Fisherman's Paradise in the Shoalhaven local government area. She has made an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of two rows of Leyland Cypress trees growing along the front and rear boundaries of the adjoining property. 2. The applicant maintains that the trees in question severely obstruct sunlight to windows on the front and rear facades of her house, particularly between the months of May and August. While some mention is made in the application claim form of sunlight to the front lawn and backyard, Part 2A of the Act only applies to the obstruction of sunlight to windows of a dwelling. 3. The respondents value the trees for the shade they provide and as windbreaks. 4. In applications under Part 2A there are a number of jurisdictional tests that must be satisfied sequentially before the Court's powers to make orders under s 14D are engaged. 5. The first of these tests is whether the trees in question are trees to which the Part applies. Section 14A(1) of the Act requires there to be two or more trees planted so as to form a hedge, and which rise to a height of at least 2.5m. 6. I am satisfied that the five trees along the respondents' eastern/ front boundary and the five along the rear or western boundary have been planted so as to form a hedge. This opinion is based on the linear arrangement, spacing and species. According to information obtained by the respondents from a former owner of their property, the trees were planted in 1984 as a windbreak and are parts of longer rows which extend to the north. Subdivision of the original lot has resulted in parts of the rows being in separate ownership. The trees are estimated to be approximately 12-14m tall. 7. The next relevant test is found in s 14E(2). This states: (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 (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. 1. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies. 2. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows. 3. The applicant nominates four windows. Window 1 (W1) and window 2 (W2) are on the front or east-facing façade. Both windows face onto the front verandah which is about 2m wide. 4. W1 at the north-eastern end is the kitchen window. W2 comprises full-length and curtained windows of the living room. In the garden in front of W1 is a mature Bottlebrush that has been recently and severely pruned to clear the electrical service line. W1 is also shaded by a canvas awning attached to the outside of the verandah, above which is a solid fibro infill between the top of the awning and the roofline. Growing to the east of part of W2 is another mature and unpruned Bottlebrush. 5. The applicant contends that the row of trees along the respondents' front boundary, the eastern hedge, severely obstructs sunlight to W1 and W2. 6. The applicant did not provide any shadow diagrams or recent photographs of the shadows cast in order to verify her claim. During the hearing she produced several photographs taken in 2001 when she moved in. One of the photographs shows some shadowing of the front lawn from what appears to be from one or more of the cypress trees. The applicant suggests that the trees were less than 10m tall at that time. However, as the photographs do not have any time or date stamps, they are of little assistance. 7. As directed, the respondents provided material on which they intended to rely. This material includes a number of photographs taken at various times of the day over several days in late May 2015. The photographs show aspects of the parties' properties and include images of sun and shadows on the applicant's dwelling. The shadows are of a range of shapes and include shadows cast by their dwelling and by large eucalypts growing in their front garden. (The several Eucalypts and other specimen trees in the respondents' front garden are taller than the Leylands.) It is difficult to discern how much shade is cast by the Leyland Cypress trees. 8. Given the very limited evidence provided by the parties, I must rely on what I observed on site. Given the eastern orientation of the windows and the relative location of the trees to the north-east and in considering the angles of the sun at various times of the year, it is possible that one or more of the Cypress trees may contribute to the shading of W2 and probable that they contribute to the shading of W1 during the winter months. However, I cannot be satisfied that any shading caused by them is severe given the other structures and trees that may also contribute to the shading. These contributing factors include the width of the verandah, the awning in front of W1 and the contribution of trees that are not trees to which Part 2A applies growing on both properties as well as trees on the property to the north of the respondents' land. 9. Therefore, as there is much uncertainty as to the quantum and cause of the shading I cannot be satisfied that s 14E(2)(a)(i) is met for W1 and W2 as a consequence of any of the trees in the respondents' eastern hedge and no orders can be made for any intervention with any of them. 10. Turning to the trees along the respondents' western boundary, the western hedge, the nominated windows are W3 and W4 on the rear or western façade of the applicant's dwelling. 11. W3 is the window of a spare bedroom/ storeroom and W4 is a window of a room used as an office. Relevantly, the trees in the western hedge are to the northwest and quite a considerable distance away. Between the Leylands and the windows is a large, mature ornamental pear tree growing on the applicant's property. While this tree is deciduous, it will make some contribution to shading of the nominated windows. It is clear from the photographs provided by both parties that the respondents' dwelling shades W3 at various time of the day. 12. As with W1 and W2, the applicant has not provided sufficient evidence to satisfy s 14E(2)(a)(i) and therefore the Court's jurisdiction is not engaged. 13. As a consequence, the Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Commissioner of the Court