Land and Environment Court New South Wales Medium Neutral Citation: Solo v Sverkidis & anor [2017] NSWLEC 1198 Hearing dates: 20 April 2017 Date of orders: 20 April 2017 Decision date: 20 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; Obstruction of sunlight and views; no currently severe obstruction of views; sunlight - sufficiency of evidence; likely obstructions for other reasons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Category: Principal judgment Parties: Dr Eric Solo (Applicant) Mr Jim Sverkidis (First Respondent) Mrs Anna Sverkidis (Second Respondent) Representation: Applicant: Dr Solo (Litigant in person) Respondent: Ms Minos (Agent) File Number(s): 359122 of 2016 Publication restriction: No judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to fence height of a row of conifers, or preferably, the removal of the trees. The orders are sought on the applicant's contention that the trees severely obstruct views from his dwelling and severely obstruct sunlight to windows of his dwelling. 2. The respondents reject these orders on the basis that pruning to fence height would remove almost all foliage and thus be tantamount to removing the trees. The respondents, and their tenant, value the trees for the amenity they afford their property, in particular the privacy they provide, the filtering of air pollution from the nearby Princes Highway, and their role as a windbreak. The respondents' agent indicated that the trees in question are one part of a perimeter planting of trees. 3. 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. 4. The first test, in s 14A(1) 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 and are they at least 2.5m tall. 5. The diagram in the application claim form illustrates 15 trees – numbered from east to west. The applicant acknowledged that determining the actual number of trees was difficult as he was unable to enter the respondents' property. During the on-site hearing it was confirmed that there are 8 or 9 trees that were planted along the respondents' southern boundary in about 1999. The trees range considerably in height and diameter; the tallest and largest trees are at the western end, the smaller trees are at the eastern end. This may be due to a mix of cultivars. There was some discussion as to whether Tree 9, the westernmost and largest tree, was planted at a later stage. There are also several stumps of trees which have been relatively recently removed. A number of newly planted trees were noted. The new trees, apart from being planted in a separate event, are not trees to which Part 2A applies as they are less than 2.5m tall. 6. I am satisfied that the 8-9 mature trees are trees to which the Part applies. 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. Views 1. The applicant's dwelling is oriented generally from east to west. The three nominated viewing positions are through full-length windows and glass sliding doors of the open plan living/dining/kitchen area and adjoining east-facing terrace. The principal view is an expansive view of the Georges River, Captain Cook Bridge and beyond. In the application claim form, the applicant describes this view as a 'great view'. 2. The applicant is concerned that a recent rezoning by Georges River Council of land to the east of the Princes Highway, which potentially allows development up to 12-15m, will block those views. The view in contention is the view to the northeast across the side boundary to Kogarah Bay, which is obstructed by the easternmost of the respondents' trees. 3. 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. 4. The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 1. In applying these concepts to this application there is no severe obstruction of views from the applicant's property as a consequence of trees to which Part 2A applies. Therefore this element of the application is dismissed. However, should the circumstances change, a fresh application can be made. Sunlight 1. There are four nominated windows. From east to west the windows are: * W1 – dining room * W2 – kitchen * W3 – bedroom * W4 – bathroom 1. All windows are on the northern façade of the applicant's dwelling, which is set back about 750mm from the applicant's retaining wall (the outer edge of which is along the common boundary). 2. The applicant contends that the easternmost trees and trees opposite each of W1 and W2 obstruct sunlight from early morning – 6.00am in summer and 7.00am in winter, to about 2.00pm. He states that trees opposite W3 and W4 obstruct all sunlight to these windows. 3. The applicant has not provided any shadow diagrams or timed and dated photographs to illustrate the obstruction caused by the respondents' trees and any obstruction that may be caused by any other nearby structure such as the fence and retaining wall. 4. In the absence of this evidence, I made the following observations. * As stated above, the northern façade is set back about 750mm from the applicant's retaining wall; the retaining wall steps up in height from east to west, probably to about 1.2m near W4. * The applicant's land is lower than the respondents' land due to the natural fall in topography from north to south and west to east (the respondents' land is to the north and upslope of the applicant's land). * The respondents installed a 1.8m metal fence on their land, about 200mm from the common boundary; that is, the fence is within a metre from the northern façade; further to the west, the fence runs along the common boundary. * Above the metal fence, in the vicinity of W1, and on the respondents' side of the fence, there is a bamboo slatted screen. * The metal fence obscures the lower two thirds of W1; the top of the bamboo screen is level with the top of the window. There are a number of gaps between the trees opposite W1 through which sunlight enters the dining room – and which was gratefully acknowledged by the applicant during the hearing. * The metal fence obscures all except the upper easternmost corner of W2. * W3 is fully below the fence with the fence being above the guttering at the western end. 50% of W3 is obscured by the applicant's retaining wall. * W4 is a bathroom window comprising opaque glass tiles and a frosted sash window panel. This window is well below the top of the fence. 1. While I am satisfied that some of the trees will contribute to the obstruction of sunlight to at least W1 and W2, and perhaps a very small section of W3 when the sun is at its highest, it appears that the majority of the obstruction arises from the height and proximity of the adjoining fence as a consequence of the difference in levels between the two properties. 2. With the arboricultural expertise I bring to the Court I agree with the respondents' submission that pruning to fence height would effectively remove the trees as there would be little if any foliage left on most of the trees. I note that the arborist's report obtained by the applicant from Apex Tree & Garden Experts seems to suggest pruning of the trees to 2.5m above ground level but makes no mention of the consequential effects on the health of the tree nor provides any probative evidence to demonstrate that pruning to that height would make any significant difference to solar access. It is not clear whether 'ground level' in the Apex report is ground level on the applicant's side or the respondents' property. For the purpose of making orders, the Court measures ground level from the base of the tree. 3. On the evidence before me, I cannot be satisfied to the level required by s 14E(2)(a)(i) that the respondents' trees are severely obstructing sunlight to the applicant's windows to the extent claimed by the applicant. As the requisite level of satisfaction is not achieved, the Court's jurisdiction is not engaged. However an observation made on site was that the current gap in foliage in the vicinity of W1 allows some sunlight through to the applicant's dining room and does not overly compromise the respondents' amenity. 4. On the basis of the jurisdictional findings, 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: 21 April 2017