Wright v Jonjil Pty Limited [2016] NSWLEC 1070

Land and Environment Court New South Wales

Medium Neutral Citation: Wright v Jonjil Pty Limited [2016] NSWLEC 1070 Hearing dates: 22 February 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; inconclusive evidence – insufficient for the making of orders Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Category: Principal judgment Parties: Mr C Wright (Applicant) Jonjil Pty Limited (Respondent) Representation: Applicant: Mr C Wright (Litigant in person) Respondent: No attendance File Number(s): 21066 of 2015

Judgment 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Leyland Cypress hedge growing on the respondent's Kellyville property. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant's dwelling. 2. As usual in these matters, the hearing commenced on site outside the respondent's property. I knocked on the door and rang the doorbell three times; there was no response. I am satisfied on the material contained within the Court file that the respondent was appropriately served with both the Tree Dispute Application and the Directions of the Court. On this basis, the matter proceeded without the respondent. 3. In applications made under Part 2A of the Act, there are a number of jurisdictional matters that must be sequentially satisfied in order to engage the Court's powers to make orders under s 14D. 4. The first of these is whether the 18 trees the subject of the application are planted so as to form a hedge and which rise to a height of at least 2.5m (s 14A(1)). The trees in question were easily seen from the applicant's property. I am satisfied on the basis of species, spacing and arrangement that the trees are planted so as to form a hedge; they are approximately 10m tall. Therefore s 14A(1) is met. 5. The next jurisdictional test, in s 14E(1)(a), is whether the applicant has made a reasonable effort to reach an agreement with the owner of the land on which the trees are situated. 6. An uncontested statement in the application claim form indicates that the applicant brought the problem to the owner/occupant of the respondent's property on several occasions; these attempts also included the provision of an arborist's report commissioned by the applicant. On this basis I am satisfied that s 14E(1)(a) is met. 7. The key test in applications made under Part 2A is found in s 14E(2) which 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. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. 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 Act uses the word 'severely'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc. and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Perhaps the most applicable synonyms for 'severe' in Part 2A matters might be the words harsh or extreme. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application. 4. The applicant has nominated nine windows at the rear of his dwelling which he contends are severely affected by the respondent's trees. Windows 1-7 are on the ground floor; the others are on the first floor. * Window 1 Generally north-facing Dining room * Window 2 West facing Living room * Window 3 North-west facing " * Window 4 Generally north-facing " * Window 5 West facing " * Window 6 Generally north-facing " * Window 7 Generally north-facing " * Window 8 Generally north-facing Bedroom * Window 9 Generally north-facing " 1. The respondent's property is to the north-west of the applicant's property; the common boundary is approximately one third of the width of the respondent's rear boundary, at the eastern end. The Leyland Cypress hedge extends around the perimeter of the respondent's backyard from the rear setback of the dwelling along both side boundaries and the rear boundary. The respondent's hedge adjoins the side or rear boundaries of four properties. 2. During the site inspection I noted two Sapium sebiferum (Chinese Tallow Trees) growing in the north-western corner of the applicant's property and other trees along the rear and eastern boundaries of the applicants' property and along the common boundaries of those other adjoining properties. The Chinese Tallow trees are deciduous and the other trees are evergreen; none of the other trees are as tall as the Leyland Cypress. 3. The applicant contends that windows 1-4 are 100% shaded by the trees during winter and 50% shaded during spring and autumn; windows 5-7 are shaded 75% during winter and 25% during spring and autumn; and the upstairs windows are 50% shaded during winter. 4. The applicant's supplementary evidence (Exhibit B) includes a number of photographs showing the height of the trees in 2005 and 2006 – approximately 3-4m tall, and their height and impact on the applicant's dwelling in photographs taken at about 3.00 pm on 6 September 2015. The 2015 photographs show all except the part of the eastern-most window on the ground floor in full shade at that time of the day; the upper level windows are in part shade. 5. The application claim form includes an Arborist's report prepared in September 2015 by Ms Bernadette Hunt of Apex Tree & Garden Experts. The report appears to be based on statements made by the applicant in regards to his concerns about the trees. The arborist notes that 9 of the trees detrimentally affect the applicant's property; the rear of the applicant's dwelling being about 8m from the nearest trees. She observes that two of the trunks are contacting the dividing fence. Ms Hunt recommends the trees be reduced to about 5m, being about 50% of their current height, and then maintained at that height annually. The reason for nominating this height is not given. She also considers that the sides of the trees should be trimmed to encourage foliage density to limit view lines between the houses. [Ms Hunt also notes that residents are permitted to prune overhanging branches however the basis of that statement is not provided; the permissibility of such pruning should always be sought from the local council.] 6. Although the arborist recommends pruning to a height of 5m, the applicant is concerned that this height will be insufficient to provide adequate winter sun to his dwelling and he maintains his position that the trees should be removed.