Butler v Taylor & anor [2016] NSWLEC 1427

Land and Environment Court New South Wales

Medium Neutral Citation: Butler v Taylor & anor [2016] NSWLEC 1427 Hearing dates: 20 September 2016 Date of orders: 20 September 2016 Decision date: 20 September 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: [TREES [NEIGHBOURS] Hedge; obstruction of sunlight; discretion Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: Richard Butler (Applicant) David and Joanne Taylor (Respondents) Representation: Applicant: Mr R Butler (Litigant in person) Respondents: Ms G Taylor (Agent) File Number(s): 151839 of 2016

Judgment 1. COMMISSIONER: The applicant and his wife have owned a villa in a complex in Warners Bay since 2001. The respondents' property is to the east. The respondents have planted a row of plants along part of the shared common boundary, five of which the applicant contends are severely obstructing sunlight to several windows on the eastern side of his dwelling. 2. The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the five nominated plants. 3. In their written response, the respondents do not wish to remove the plants as they value them for the privacy they afford their property and for the habitat they provide local wildlife. 4. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged. 5. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge? 6. The five trees in question, labelled on the diagram in the application claim form from north to south are: * T1 – Monstera, * T2 – Bamboo (clumping) * T3 – Giant Bird of Paradise (Strelitzia nicolai) * T4 – Purple Duranta (Duranta erecta) * T5 – Giant Black bamboo (clumping) 1. The photographs included in the application claim form show a dense mass of vegetation with the foliage of various plants intermingling and overhanging the fence. At the time of the on-site hearing, it was clear that the respondents had cleared some of the growth back from the fence and thinned and pruned a number of plants. The spacing and arrangement of the trees could be seen from the applicant's property. 2. The applicant's uncontested statement is that the plants, the subject of the application, were planted sometime in 2006/2007. The respondents' daughter was unable to verify this. 3. Although the plants are of a mixture of species, the spacing is a fairly regular 1.5-2m and it is possible they were planted during the same event. While I am not fully satisfied that the row of plants would be perceived by anyone viewing them on the day of the hearing as a 'hedge' as discussed in Wisdom v Payn [2011] NSWLEC 1012 at paragraph [45], in putting the applicant's case at its highest, I will consider the test as met. 4. 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. The nominated windows are located on the south-eastern corner of the applicant's villa. Window 1 (W1) is the glass door into a hall and laundry. It is setback from the side boundary beneath a covered porch. Windows 2 and 3 are highlight, frosted windows to a toilet and bathroom on the eastern façade approximately 1m or so from the common boundary. I was informed that the principal living area is located at the northern end of the dwelling. 2. The applicant states that at all times of the year and for a large part of the day, the trees obstruct what sun is available to those windows. 3. I am satisfied on the basis of the height and location of the trees relative to the windows that they will contribute to a severe obstruction of sunlight to those windows, however, in considering whether any orders can or should be made for any intervention with the trees, I make the following observations. 4. The applicant's villa has it main orientation from north to south. The windows in question are on the south-eastern corner. As stated above, W1 is setback from the eastern façade beneath a covered roof. The applicant's land is approximately 500mm below the respondents' land in the vicinity of the trees. There is Colorbond fence above a retaining wall. The respondents' dwelling is elevated at its rear and is to the south-east. There is a large Liquidambar growing between the respondents' dwelling and T5. There is another large tree at the rear of the respondents' property to the northeast on the other side of a shed. 5. The applicant has not provided any shadow diagrams, however, given the orientation of W1, it is highly likely that absent the trees in question, it would probably only receive very limited early morning direct sunlight between the equinoxes over summer. It is unlikely to receive much if any direct sunlight in mid-winter as the edge of the building is likely to shade the door, as would the covered roof and the fence. The small windows to the bathroom and toilet are frosted and high and during the hearing were observed to be shaded by the eaves. 6. In considering applications made concerning obstruction of sunlight, the Court has often adopted the usual minimum standards for sunlight or solar amenity required by council planning controls which typically prioritise windows of principal living areas. Having considered many planning appeals, I have not seen any requirement for sunlight to windows of laundries, bathrooms or toilets as these are rooms used only occasionally. 7. During the hearing, the applicant also stated that canes from T5 often hung over the fence and obstructed sunlight to the clothesline in the small courtyard near the front door. While the photographs attached to the application claim form show that this has occurred, Part 2A of the Trees Act does not apply to obstruction of sunlight to anything other than windows of dwellings. 8. While I am certain that the applicant and his wife find the obstruction of sunlight distressing, having considered the circumstances of the matter, on balance I am not satisfied that s 14E(2)(b) is met and therefore I am unable to make any orders for any interference with the trees. 9. Therefore, the Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Commissioner of the Court