Levett & anor v Murray & anor; Levett & anor v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley [2016] NSWLEC 1012

Land and Environment Court New South Wales

Medium Neutral Citation: Levett & anor v Murray & anor; Levett & anor v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley [2016] NSWLEC 1012 Hearing dates: 13 January 2016 Date of orders: 15 January 2016 Decision date: 15 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: 15/20918: The application is dismissed. 15/20919: The application is dismissed. Catchwords: TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; discretionary matters Legislation Cited: Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Wingecarribee Local Environmental Plan 2010 Cases Cited: McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: Kerry Donald & Penelope Clair Levett (Applicants – both matters) Robert John & Anne Elizabeth Murray (Respondents 20918 of 2015) Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley (Respondents 20919 of 2015) Representation: Applicants: Kerry and Penelope Levett (Litigants in person) Respondents 20918 of 2015: Anne Murray (Litigant in person) Respondents: 20919 of 2015: Richard Akero (Agent) File Number(s): 20918 of 2015 & 20919 of 2015

Judgment 1. COMMISSIONER: The Levetts own a property in Burradoo. The adjoining properties to the north were once part of a larger property known as 'Ostler's Lodge', listed as a local heritage item in Schedule 5 Wingecarribee Local Environmental Plan 2010 (WLEP). On the southern boundary of that property is a row of Cupressus torulosa (Bhutan Cypress) believed to have been planted in the 1980s. In 2001, 'Ostler's Lodge' was subdivided. The owners of the resulting two properties are the respondents in these proceedings. The Murray property is the western portion of the subdivided lot; the Hinkley property, on which the listed cottage is located, is to the east. 2. The Levetts have applied under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning by approximately 50% of their height – being to about 8-10m or preferably to gutter or roof height of 2-4m, and annual maintenance, of 23 Bhutan Cypress trees (12 on the Murray property, 11 on the Hinkley property) on the basis that the trees severely obstruct sunlight to windows of their dwelling. In addition, the Levetts seek the pruning and maintenance of a more recently planted extension of the row of Cypress and a Cherry Laurel hedge on the Murray property to a height of between 2-4m in order to prevent future loss of sunlight. 3. Neither respondent wishes to prune the trees. In particular, Mrs Murray values the trees for the privacy they afford her property, especially as the adjoining property may be redeveloped. She also raises a number of other matters that are discussed elsewhere in this judgment. 4. In applications under Part 2A of the Trees Act, there are a number of jurisdictional tests which must be sequentially satisfied in order to engage the Court's powers under s 14D to make any orders for any intervention with any of the trees the subject of an application. 5. These tests relevant to these matters are summarised as: * Are the trees in question trees to which Part 2A applies? That is, are the trees wholly or substantially on adjoining land? (s 4(3)) Are there two or more trees planted so as to form a hedge? (s 14A(1)(a)) If so are they at least 2.5m tall? (s 14A(1)(b)) * Are the trees concerned severely obstructing sunlight to windows of a dwelling situated on the applicant's land? (s 14E(2)(a)(i)) In applications regarding obstruction of sunlight, this is usually considered to be mid-winter sunlight rather than the sunlight observed at the time of the hearing. * If they are causing a severe obstruction, is the severity and nature of the obstruction 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? (s 14E(2)(b)) This involves consideration of a number of matters listed in s 14F. 1. The main trees in question are identified in the application claim form as Leyland Cypress but are correctly identified as Cupressus torulosa (Bhutan Cypress). They are wholly within the respondents' land. There is no dispute that the trees are trees to which the Act and the Part applies. The trees are estimated to be about 16m tall. The recently planted conifers are more than 2.5m tall. The Cherry Laurel hedge is less than 2.5 m tall and therefore is beyond the scope of Part 2A. Therefore the main row of conifers and the more recently planted row of conifers meet the requirements of s 14A of the Trees Act. 2. The applicants have nominated 20 windows of their dwelling. During the hearing, the applicants limited the claim to the following windows: W1 west facing living room window W2-3 north facing living room windows W4 north facing dining room window W5 east facing dining room glass doors/window W6 east facing kitchen window W7 north facing family room window W8-10 east facing family room windows W11-12 skylights in family room 1. The Levetts purchased their property in 2001 and in 2002 added the family room on the eastern side (including the skylights); they estimate that the trees were then 6-8 m tall or chimney height. They state in their claim form that windows 1 and 2 used to receive winter sun in the early afternoon but now not until about 3.00pm; windows 2, 3, 4 and 7 used to receive winter sunlight from 9 am but now don't receive any; and windows 11 and 12 once had winter sun from 10-11.00 am but now don't receive any. 2. There is some dispute as to the height of the trees when the applicants purchased their property. During the hearing the height of the chimney was measured to be about 5.5m above ground level. Mrs Murray maintains that the trees must have been much taller than suggested by the Levetts as a photograph taken in February 2004 of the house she purchased in 2007 under construction shows the row of Cypress along the boundary extending well above the height of that building. 3. In support of their claim the Levetts provided shadow diagrams prepared in March 2004 which were prepared for a development application for a proposed ten dwelling aged care development on the site. The shadow diagrams include the shadows cast each hour from 9.00 am until 3.00 pm on 22 June by the existing dwelling, the proposed buildings and the Cypress trees. Although there are other trees on the Levett and Hinkley properties, the shadows cast by those trees are not shown. 4. The table below illustrates the likely impacts of the trees on the nominated windows at the time the Levetts purchased their property in 2001 and in 2002 when the extension was built. These estimates are based on the shadow diagrams and on the assumptions that the shadow diagrams accurately reflect the height and position of the trees and the trees have an average annual growth rate of 500mm per year [based on their current height and estimated age]. I am assuming that there trees were at least 8m tall. 5. This is necessary to establish as Part 2A does not create a vehicle for an applicant to obtain more sunlight or more of a view than was available to them when they purchased their property. This is discussed at length in McDougall v Philip [2011] NSWLEC 1280. Table 1: Estimated blockage and available sunlight – 2001/2002 Window and aspect Blocked by trees Sunlight available Property 2001-2002 W1 – west* 9.00-11.00 11.00-3.00 Murray *11.00 W2 - north 9.00-11.30 11.30-3.00 Murray W3 - north 9.00-12.30 12.30-3.00 Murray W4 - north 9.00-2.30 2.30-3.00 Murray W5 – east* 9.00-1.00 - Murray *1.00-3.00 W6 – east* 9.00-10.00 11.00-12.00 Hinkley at 9.00; Murray at 10.00 *12.00-3.00 W7 – north* 9.00-10.30 10.30-12.00 Hinkley at 9.00; Murray at 10.00 (2002) *12.00-3.00 W8 – east* 9.00-10.30 10.30-1.00 Hinkley (2002) *1.00-3.00 W9 –east* 9.00-10.00 10.00-12.00 Hinkley (2002) *12.00-3.00 W10 – east* 9.00-10.00 10.00-12.00 Hinkley *12.00-3.00 W11/W12 9.00-10.00/10.30 10.00/10.30-1.00 Hinkley 9.00; Murray 10.00 Skylights* *1.00-3.00