Land and Environment Court New South Wales Medium Neutral Citation: Hall & anor v Bezzina [2016] NSWLEC 1539 Hearing dates: 14 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Class 1 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight; privacy; insufficient evidence to discount other potential causes of obstruction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Drewett v Best [2010] NSWLEC 1305 McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: Judith & Graham Hall (Applicants) Marlene Bezzina (Respondent) Representation: Applicants: J & G Hall (litigants in person) Respondent: M Bezzina (Litigant in person) File Number(s): 202105 of 2016 Judgment 1. COMMISSIONER: The applicants purchased their Dover Heights property in 2005. At that time a row of seven Leyland Cypress trees was growing along the rear boundary of the respondent's property. The respondent's husband planted the trees in 1996 after the previous owners of the applicants' property added a second storey to their dwelling. Concerns about privacy prompted the planting. 2. The applicants contend that the trees severely obstruct sunlight to five nominated windows on the western side of their dwelling; three on the ground floor (windows 1-3) and two on the first floor (windows 4 &5). The applicants claim that the windows are obstructed in the following way: * Window 1 (W1) Bedroom – 80% loss all year; * Window 2 (W2) Bathroom – 100% loss all year; * Window 3 (W3) Living room [shown in the application claim form as one window but noted on site as two windows] -100% loss all year; * Window 4 (W4) Bedroom – 80% loss all year; * Window 5 (W5) Bathroom – 100% loss all year. 1. On the basis of this contention, the applicants have applied under s14B Part 2A of the Trees (Disputes Between Neighbours Act) 2006 (Trees Act) for orders seeking either the removal of the trees or pruning to a height of 2.6m above ground level (measured from their property) and their subsequent maintenance. The applicants' property is approximately 800mm lower than the respondent's land; the effective height sought by the applicants would be about 100mm above fence height. 2. The respondent last pruned the trees to be level with the top of the windows on the applicants' upper storey in April 2015. She has recently obtained permission from Waverley Council to reduce the height of the trees by up to 1.5m [confirmed by Mr Malcolm Coote, Waverley Council's Tree Management Officer who attended the on-site hearing]. During the hearing the trees were measured from the respondent's property to be a height of 5.5m above ground level. 3. The respondent does not wish to remove the trees or prune them to the height sought by the applicants as she values the privacy the trees afford to her principal living area and adjoining deck. She maintains that these areas would be directly viewed from the applicants' upstairs rooms. 4. During the hearing there was some discussion of alternative orders including the replacement of the trees with a species with a more open canopy or the removal of every second tree and pruning of the remainder. Jurisdiction 1. 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. 2. 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? 3. There is no dispute that the trees are trees to which the Part applies. They were planted, and have been maintained, as a hedge. 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. 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. If a severe obstruction is found, the balancing of interests inherent in s 14E(2)(b) is considered in the light of relevant matters in s 14F. Consideration 1. The applicants did not prepare any shadow diagrams. The only evidence tendered by the applicants in support of their contention are a series of photographs taken on 29 June 2016 between 1.00 and 2.00 pm from each of the nominated windows except W3, and from the setback on the western boundary. All illustrated windows, apart from W4, appear to be in the shade cast by the trees. 2. However, despite the paucity of evidence, in putting the applicants' case at its highest, I am prepared to make a preliminary finding that the respondent's trees severely obstruct sunlight to the applicants' windows for at least some part of the year. As s 14E(2)(a)(i) is potentially satisfied I must consider s 14E(2)(b) and relevant matters under s 14F. Location of trees (s 14F(a)) 1. The trees are growing close to the dividing fence. The respondent's property is one five which adjoin the applicants' western boundary. The applicants' dwelling is setback 1.5m from the common boundary with those properties. The accuracy of the diagram in the application claim form was checked during the hearing. The trees are numbered 1-7 from south to north. Tree 1 is in the south-eastern corner of the respondent's property and Tree 7 is in the north-eastern corner. Tree 1(T1) is opposite the wall between W1 and W2; T2 is opposite W2; T3 is opposite W4; T4 is opposite the side entry and hallway into the applicants' dwelling and W5 the upstairs bathroom; T5 is opposite the entry; T6 is opposite the southern-most window in the living room (W3) and T7 is opposite the wall between the two windows in the living room. Opposite the northern-most window in the living room are trees growing in the property to the north of the respondent's land. These trees are a row of Lillypillies, the closest of which are approximately the same height as the row of Leylands and then descend in height towards the north. Pre-existence of trees and growth during applicants' occupancy (s 14F(b)(c)) 1. As stated above, the trees were planted in or about 1996; the applicants purchased their property 8-9 years later. The respondent's uncontested statement is that the trees were planted as advanced stock of 2-3m. Neither party produced any evidence to confirm the height of the trees either at planting or when the applicants moved in. This is relevant as the revision of the Trees Act which brought Part 2A into effect does not establish a right to views or sunlight that an applicant did not have when they purchased the property (see McDougall v Philip [2011] NSWLEC 1280). 2. With the horticultural and arboricultural expertise I bring to the Court, even if the trees had been 1m tall when planted, I would be extremely surprised if the trees had been only 2m or so tall in 2005 as alleged by the applicants. This is a relatively vigorous species. In support of their case, the applicants maintain that when they moved in they had to put sun shades on their western windows to keep out the western sun but these are now redundant and the lights must be kept on, especially in the downstairs bedroom, living room and upstairs bathroom. I do accept that the trees will have grown taller over the period the applicants have owned their property and, as they have been maintained as a hedge by clipping the tops and sides, they will have thickened up. Is other consent required? (s 14F(d)) 1. As the trees are in excess of 4m tall, consent for removal or pruning would ordinarily be required from Waverly Council. As previous discussed, permission has been received for some reduction. Mr Coote stated that if the trees are maintained as a hedge, ongoing consent is not required. Impacts of pruning (s 14F(k)) 1. Neither party engaged an arborist to provide independent expert evidence. Given the height difference between the parties' properties, should the applicants' position prevail, the trees would be reduced to 1.8m when measured from the respondent's ground level; that is, to about a third of their current height. 2. With the arboricultural expertise I bring to the Court, pruning the trees to the height sought by the applicants is excessive and would be very detrimental to their health and appearance. The reduction approved by council will have much less impact on the trees. The height approved by council would probably bring the top of the trees to half way up the windows on the upper floor. Contributions to the amenity of the respondent's property (s 14F(l)) 1. The respondent's principal position is that the trees were planted to provide privacy from the rooms on the upper storey of the applicants' dwelling; retaining that privacy is her key desire. 2. With the benefit of viewing the trees from both parties' properties, I agree with the respondent that her principal kitchen/ living area and adjoining balcony would be directly viewed from the applicants' first floor windows. While the applicants noted the overlooking of the respondent's back garden from other adjoining properties, this is not something raised by the respondent. I observed that it is all possible to see the respondent's balcony and glass doors through the trees from W2 and W3. Other obstructions (s 14F(m)) 1. The absence of shadow diagrams makes it difficult to determine the actual contribution of the respondent's trees to the obstruction of sunlight to the ground floor windows. I observed a number of other likely obstructions. Primarily, the proximity of the dividing fence to the ground floor windows and its effective height of 2.4-2.5m above the applicants' ground level would obstruct some direct afternoon sunlight to those windows. The upslope adjoining properties to the west are effectively 2 storeys and are likely to obstruct late afternoon sun at all times of the year. The Lillypilly trees on the adjoining property to the north of the respondent's land would also obstruct sunlight to W3, the living room. In the absence of shadow diagrams, the impacts of self-shading by elements of the applicant's dwelling such as eaves, cannot be assessed. Actions of the parties (s 14F(n)) 1. The respondent has maintained the trees in the past and has sought permission to have the trees pruned again however, this is not to the extent sought by the applicants. It is unclear as to whether the applicants have sought owner's consent to prune overhanging foliage back to the boundary, as permitted by council, and which may alleviate some shading. Extent of sunlight lost (s 14F(o)) 1. The applicants contend that the nominated windows are obstructed 80-100% of the year. Given the essentially west-facing orientation of the windows, the only sun available is afternoon sun. It is likely that in mid-winter the living room would receive some filtered afternoon sun through the Lillypillies. It would seem that windows 1 and 2 would be the most obstructed by the respondent's trees followed by the upstairs bathroom, W5. The upstairs bedroom, although being on the south-western corner of the dwelling, has two windows which would enable reasonable ambient light but not direct sunlight. However, as discussed in Drewett v Best [2010] NSWLEC 1305 at [17] the Court has accepted that the word "sunlight" is to be interpreted as "direct sunlight" rather than just daylight. Are the trees evergreen or deciduous? (s 14F(p)) 1. The trees are evergreen. Nature/use of affected rooms (s 14F(r)) 1. The rooms of most concern to the applicants are the ground floor bedroom and living room and the upstairs bathroom. The applicants' principal open plan living area/ kitchen/ informal dining is at the rear of the dwelling on the ground floor which has a north-north-easterly aspect unobstructed by the respondent's trees. 2. In sunlight matters, the Court generally adopts the approach taken in most council planning controls that priority is given to sunlight to living areas rather than bathrooms and bedrooms. Although, it is also reasonable that in some particular circumstances, children may spend more time in bedrooms playing or studying and thus sunlight to those bedrooms may be more important. In this case, this seems to apply to the ground floor bedroom. Very little weight is generally given to bathrooms because of the limited time spent in them and the fact that most bathroom windows are small and have opaque glass. Removal or pruning the trees to the extent sought by the applicants would limit the privacy to those bathroom and bedroom windows currently provided by the respondent's trees. However the applicants pressed their preference for sunlight over privacy. Conclusions and orders 1. Having considered the circumstances of the parties' properties I make the following findings. 2. I consider the orders sought by the applicants; that is, either removal or radical reduction pruning, to be unreasonable in the circumstances. There is no evidence to support their contention that the trees were as small as they say they were in 2005. While I agree that they are likely to have obscured the upper storey windows in the period they have owned their dwelling, the approval granted to the respondent by council, that is pruning to about midway up the upper windows, will help alleviate some of the shadowing but maintain the respondent's privacy, which I consider to be a legitimate and significant consideration given the direct views of the respondent's main living area from the applicants' upper storey windows which do not have privacy screens. As the respondent is committed to undertake this pruning, I will not be making Court orders for the same work. 3. The major problem I have is that there is insufficient evidence to quantify the actual impact of the respondent's trees on the applicants' ground floor windows and distinguish that impact from the likely impact of the fence, the surrounding dwellings, other adjoining vegetation, and the applicants' dwelling. The lack of evidence is such that the efficacy of potential ameliorative measures, for example removal of Tree 2 to provide some sunlight to the ground floor child's bedroom, cannot be tested. 4. On balance I find that s 14E(2)(b) is not satisfied in the applicants' favour and as a consequence, the Orders of the Court are: 1. The application is dismissed. ________________________ Judy Fakes Acting 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: 16 November 2016