Land and Environment Court New South Wales Medium Neutral Citation: French & anor v Bendror [2017] NSWLEC 1013 Hearing dates: 11 January 2017 Date of orders: 17 January 2017 Decision date: 17 January 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ball v Bahramali & anor [2010] NSWLEC 1334 Deville & anor v Frith & anor [2014] NSWLEC 1002 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Karam v Meredith [2012] NSWLEC 1114 Mayes v Keene [2016] NSWLEC 1604 McDougall v Philip [2011] NSWLEC 1280 Category: Principal judgment Parties: John & Maria French (Applicants) Rowena Bendror (Respondent) Representation: Applicants: John and Maria French(Litigants in person) Respondent: Geoff Beveridge (Barrister) File Number(s): 313226 of 2016 Judgment 1. COMMISSIONER: The applicants own a property in Bowral. They have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to 2.5m, and subsequent annual maintenance, of two rows of trees growing on an adjoining property to the north. 2. The orders are sought on the applicants' contention that, amongst other things, the trees severely obstruct sunlight to windows of their dwelling. 3. Apart from orders for pruning, the applicants are seeking reimbursement of all costs and fees, including legal costs, incurred by them in relation to the Class 2 application. 4. In dealing with this matter first, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 5. In regards to the requested height of 2.5m, the applicants were under the misapprehension that 2.5m is the 'legal' height required by the Trees Act. This perception is not uncommon. The height of 2.5m is simply the height at which the trees must be in order to engage the Court's jurisdiction in Part 2A of the Trees Act. 6. The trees in question are seven Cupressus torulosa (Bhutan Cypress) in a row of more than seven Cypress and an adjoining row of seven Magnolia grandiflora 'Little Gem'. The trees are growing along the southern side boundary of the respondent's property. The applicants' position 1. The applicants purchased their property in July 2003 and occupied it in 2011. During the hearing the applications stated that when they purchased their large battle-axe property there were a number of buildings on the site including the original cottage. In 2011 the original cottage was partially demolished and substantially extended. The extensions include a wing parallel to the northern / rear boundary. The extensions necessitated the excavation of the rear of the site. A stone wall was constructed in order to retain the cutting. The natural soil level along the northern and eastern boundaries slopes down from east to west and more gently from north to south. The greatest difference in levels between the parties' properties is in the north-eastern corner of the applicants' property – estimated to be at least 1.5m. At the original ground level is a 1.8m timber fence constructed along the common boundary [on top of the retaining wall]. 2. In oral evidence, the applicants stated that when they purchased their property there was a row of Cypress growing along the common boundary but at some stage [according to the application claim form – 2006] the former owners of the respondent's property removed them and replanted with the current Bhutan Cypress. 3. They estimate the Bhutan Cypress trees to have been between 3- 5m tall in 2011/2012. They estimate the Magnolias to be 3.5-4m tall and consider they were planted in about 2011. 4. The applicants engaged a draftsman to prepare shadow diagrams for the winter solstice, June 21 at 9 am, 12 pm and 3 pm. The shadows are shown in plan or aerial view as well as a perspective from the northwest. The notes accompanying the drawings relevantly state that: 5. Currently the Pine trees are 7m high and the Magnolias are 5m high. These heights were calculated based on the length of the shadows produced by the trees and confirmed visually using a pole of a known length. 6. The diagrams show the trees at their current height reduced to 2.5m and at 8m and 6m respectively, the heights they are estimated to be in 12 months' time, based on a rate of growth of 1m per year. 7. Apart from the shadow diagrams, the application claim form includes a number of photographs said to have been taken on 23 June 2015 and 22 July 2016. The dates and times are written on the photographs. 8. It was confirmed during the hearing that the draftsman measured the trees. The trees were measured during the hearing; the Bhutan Cypress are approximately 7m, with the exception of one that was pruned to 4m; on average, the Magnolias are approximately 4m tall. 9. The windows in contention are all along the northern façade of the rear extension; the rooms are as follows – from west to east: * Window 1 (W1) north-facing bedroom * Window 2 (W2) north-facing lounge * Window 3 (W3) west-facing dining * Window 4 (W4) north-facing dining * Window 5 (W5) north-facing dining * Window 6 (W6) east-facing dining * Window 7 (W7) north-facing glass door to kitchen * Window 8 (W8) north-facing kitchen 1. The Bhutan Cypress are to the north and northwest of W1 and W2; the remaining windows are opposite the Magnolias. W1, W2, W7 and W8 are setback approximately 6.5m from the stone retaining wall and about 7m from the dividing fence on top of the wall. W4 and W5 are setback about 3.5m from the retaining wall. 2. The application claim form includes an 'Impact Statement'. The applicants claim that the shadows cast by the 14 trees have had the following impacts, as summarised from the statement: * north-facing living areas (kitchen/family room/dining room) are in shadow 80-100% of the time during the winter months; as a result the rooms are dimmer, colder and create a 'depressive' living space which affects the mood of occupants. * Washing takes longer to dry; the backyard is colder and wetter with frosts more severe and lasting longer; impossible to grow winter vegetables; unable to enjoy outdoor entertaining; 1. The statement concludes with: Everyone has a "right of light" the hedges have stolen that from us 1. In the application claim form, the applicants state that in the winter months, windows W1, W2, W3, W4 and W5 are in full shadow for 5 hours and W6 and W7 are in full shadow for 6-8 hours. They rely on the shadow diagrams. The respondent's position 1. The respondent purchased her property in January 2010 and moved in after renovations were finished in August 2010. In 2010, a section of the Cupressus hedge was removed and replaced with the Magnolias. 2. The respondent contends that the Bhutan Cypress were well-established when she purchased the property and relies on the photographs in the real estate agent's brochure she obtained at the time of purchase. She also relies on a letter from the former owners of her property who state that the trees were there when they purchased the property in 1997. The respondent therefore disputes the applicants' statement that the Cypress trees are replacements. 3. The respondent's position is that the trees were tall when the applicants built their extension and have not grown to the extent claimed by the applicants. 4. Mr Beveridge, the respondent's barrister, submits that while there is some shading of the windows by the trees, the obstruction is not severe and therefore the Court's jurisdiction is not engaged. He cites the Court's finding in a number of cases including Karam v Meredith [2012] NSWLEC 1114 at [9] in regards to the aspect of the windows and Ball v Bahramali & anor [2010] NSWLEC 1334 at [31]-[32] in regards to the notion of 'severe'. 5. The applicants object to the real estate agent's brochure on the basis that it is undated and could have been 'photo-shopped'. 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. It is agreed that the trees are trees to which the Part applies and comprise two hedges. I observed the Bhutan Cypress, with the exception of the one tree that had been pruned, to have the typical form of the species and a dense habit. The Magnolias vary in height, have an open habit and do not form a dense screen. 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) is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52] with respect to views. 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. Findings 1. The applicants rely on the shadow diagrams and photographs. For the purpose of determining whether the trees are currently severely obstructing sunlight, the relevant elements of the shadow diagrams are those showing the impacts of the trees at their current height. The diagrams showing the reduction of the trees to 2.5m are helpful in identifying the probable impacts of fences and other structures. For the reasons outlined above, the diagrams showing the trees to be 1m taller are not relevant at this at stage. [While not relevant, the assumption in the note accompanying the shadow diagrams that the trees will grow 1m per annum is contrary to the opinion provided to the applicants by a horticulturalist who suggests that the Bhutan Cypress could grow 400-500mm per annum and the Magnolias 300mm per annum.] 2. While the shadow diagrams include the impact of fences and the applicants' dwelling, they do not include the respondent's two-storey dwelling, which is relatively close to the common boundary, or other nearby trees on the respondent's property and the property to the east. However, they do include the full row of Bhutan Cypress, which extends further to the west and then swings around at 45� to the northwest. That is, they include more than the seven Cypress trees the subject of the application. The diagrams do not appear to include the impact of the tree that was pruned to 4m before the diagrams were commissioned. 3. At 9.00 am the aerial view appears to show shadows of foliage on parts of the roof above W1, W2, and W6. The perspective views are from the west/north west and therefore show windows W1-W3 clearly and very limited parts of W4 and W5. They do not show windows 6-8. At 9.00 am W1 and W2 are shown to have filtered sunlight; W1 being shaded by the Cupressus and W2 by the Magnolias. W3 is shaded by the applicants' dwelling. There appears to be only partial shading of W4 and W5 (as indicated by a brighter shade of pink). 4. At 12.00 pm the aerial view indicates possible minor to moderate shading of W7, W8 and W2 by the Magnolias and some shading of W1 by the Cypress. Windows W4 and W5 appear to be shaded by the fence. The 12.00 pm perspective confirms minor to moderate shading of W1, W2, W4 and W5. W3 is still partially shaded by the dwelling. 5. At 3.00 pm the aerial view shows shade across the lawn and the courtyard between the fence and the dwelling with some shading of a corner of the roof above W3 and W4. W6 and W7 appear shaded by the dwelling. The perspective shows W1 to be unaffected by any of the trees; partial shading of W2 and probably almost full-shading of W3, W4 and W5. 6. The photographs are generally consistent with the shadow diagrams, albeit some were taken near the winter solstice in 2015 and others 5 or so weeks after the winter solstice in 2016. The patterns of the shadow indicate that trees and structures, including what may be the respondent's dwelling, shade the nominated windows at varying times of the day. They also show the shade cast by the cypress is more dense than indicated in the diagrams however, the photographs more clearly delineate the form of the conifers and show the sunlight allowed between the tops of the trees which the diagrams do not clearly show. 7. In considering applications made with respect to sunlight, the Court has considered the usual minimum development standards or controls for sunlight required by most councils for new developments. This is typically three hours of sunlight to living room windows for at least 50% of their area on the winter solstice between 9.00am and 3.00pm. 8. In applying this concept to all of the windows nominated by the applicants, the shadow diagrams indicate it is achieved by W1 and probably by W2. W3 can only obtain afternoon sun and is obstructed by the conifers at 3.00pm but has some sunlight at 12.00 pm unaffected by trees or the eaves. W4 and W5 appear to have some sunlight from 9.00 am until after 12.00 but the diagrams do not clearly show these windows and nor do they clearly indicate the impact of other structures or other trees. W6 can only obtain morning sunlight and the extent of obstruction as a consequence of the Magnolias is unclear. W7 does not appear to be severely obstructed by the trees; the obstruction from midday is from the dwelling. W8 appears to achieve the usual minimum amount of sunlight. 9. While the shadow diagrams are of some use, they do not include other nearby trees and structures that are likely to cast shadows on the applicants' windows. On balance, and on the evidence before me, I am not satisfied to the extent required by s 14E(2)(a)(i) that the obstruction is severe at this stage and therefore, there is no need to consider the balancing of interests in s 14E(2)(b). However, that said, if I had come to the conclusion that the obstruction was severe, the only trees that would appear to have caused any significant obstruction are the Bhutan Cypress. 10. Should any future application be made about obstruction of sunlight (see Deville & anor v Frith & anor [2014] NSWLEC 1002) it would be reasonable to show the impacts of the shadows cast with the trees at a height of 5m which, with the horticultural expertise I bring to the Court, would seem from the applicants' statement and the real estate brochure, which I consider to be reasonable evidence, the height they were when the windows were installed. 11. As discussed in McDougall v Philip [2011] NSWLEC 1280 and more recently in Mayes v Keene [2016] NSWLEC 1604, prior to the 2010 amendment of the Trees Act which incorporated the new Part 2A, the NSW Department of Justice and Attorney General undertook an extensive review of the Trees Act. The report was published in November 2009. The following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views is relevant. a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling. b) That this jurisdiction be strictly limited, with applications restricted to hedges which: are both high and give the effect of a solid barrier, and are causing severe impact for a dwelling, and have caused the impact to the applicant (not to the previous occupant), and are located between neighbours on adjoining land. c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title. f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction. 1. The discussion relating to Recommendation 9 [page 35] states in part that: The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of the purchase [or in this case, when the windows were installed]. 1. The amended Act incorporates all of the recommendations made in the review [the Act has been since further amended to include trees on land zoned 'rural-residential']. Therefore, pruning the trees to 2.5m would be unreasonable. 2. I also note that Part 2A does not apply to obstruction of sunlight to gardens. Conclusions and Orders 1. As a consequence of the foregoing, 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: 18 January 2017