Allpass v Murphy & Anor [2017] NSWLEC 1706

Land and Environment Court New South Wales

Medium Neutral Citation: Allpass v Murphy & Anor [2017] NSWLEC 1706 Hearing dates: 5 December 2017 Date of orders: 08 December 2017 Decision date: 08 December 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: The application is dismissed Catchwords: TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; bamboo; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulations 2014 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tonoli v Rappo [2010] NSWLEC 1320 Texts Cited: Nil Category: Principal judgment Parties: Ian Allpass (Applicant) Tim & Laura Murphy (Respondents) Representation: Applicant: Mr I Allpass (Litigant in person) Respondents: Mr T Murphy (Litigant in person) File Number(s): 2017/00253901 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicant owns a ground floor unit in a three storey residential flat building in Freshwater. He purchased the unit in 1999. At that time, the applicant claims he had uninterrupted sunlight to the north and west facing windows of his principal living area. The applicant contends that bamboo planted at the rear of one of the adjoining properties to the north is now severely obstructing sunlight to those windows to the extent that no sunlight is available to them between 9.00am and 3.00pm in mid-winter, this being the period considered in most planning controls relating to solar access and amenity. 2. As a result, the applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the bamboo to an initial height of 2.5m and subsequent maintenance to a height no more than 5m above ground level. The applicant submits that these proposed orders are mindful of keeping the respondents' costs down. During the hearing it appeared that the aim would be to reduce the height to 2.5m leading into winter and then allowing it to grow to 5m over the summer when the sun was higher in the sky and provide more privacy to the respondents' backyard swimming pool. 3. The respondents value the bamboo for the privacy it affords the rear of their dwelling which includes the main living areas and backyard. Without the bamboo, the respondents maintain that they would be overlooked by most of the units in the applicant's building. Apart from disputing the facts of the applicant's claim, the respondents consider that maintenance to a height of 7m (the height the trees allegedly were in 2012) would be more reasonable as this would bring the bamboo down to just above the top railing of the closest unit on the top floor, thus maintaining reasonable privacy. 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) 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 if so, do they rise to a height of at least 2.5m above ground level? 6. The trees the subjects of this application comprise a 6m long row of bamboo culms planted by the respondents in 2008 across part of their rear boundary. The Trees (Disputes Between Neighbours) Regulations 2014 prescribe bamboo as a tree for the purpose of the Trees Act. The tallest of the bamboo culms are about 9m above ground level. They are wholly located on the respondents' property. I am satisfied that the bamboo plants are trees to which Part 2A applies. 7. In accordance with s 14E(1)(a) I am also satisfied that the applicant has made an effort to reach agreement with the respondents. I note that the earliest concerns from the owners of the applicant's property appear to date from April 2016 in regards to the dividing fence. In early 2017 'falling branches' were raised as an issue as was the first mention of obstruction of sunlight. 8. 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. Obstruction of views is not pressed. 4. The hearing was held on site and commenced with an inspection from the respondents' property. The relative location of the bamboo to the applicant's property was noted as were the views from the respondents' first floor living/dining area and ground floor bedroom across to (and presumably from) the various levels of units in the applicant's building. The bamboo the subject of the application was measured as was a row of clipped bamboo on the respondents' western boundary. The western boundary bamboo is not part of the claim however its height of about 5.5-6.0m was used as a reference point. 5. The applicant's building complex is on a battle-axe allotment and adjoins the rear of five properties to the north. The applicant's unit is the ground floor unit on the north-western corner of the western-most building in the complex. The respondents' south-eastern boundary is opposite approximately 1/3-1/2 of the length of the applicant's balcony. The respondents' property is to the north/north-northwest of the applicant's unit. Along the rear boundary of the property adjoining the eastern boundary of the respondents' property is a row of bamboo and perhaps one or more Leyland Cypress trees. Other taller Eucalypts were noted further to the east. 6. The applicant has nominated two windows. Window 1 (W1) is the north-facing full-length glass sliding door from the living area onto the front balcony; W2 is the west-facing window of the living room. 7. The applicant relies on photographs included in the application claim form (Exhibit A) to prove his contentions. Two of the photographs were taken on a wet evening at 7.00pm on 12 May 2017 and show the extent of the overhang of the bamboo towards the north-facing balconies of the building. The applicant submits that the overhang contributes to the obstruction of sunlight and the strata have since taken steps to have the bamboo trimmed back to the boundary. The two other photographs were taken at 9.30am and 2.30pm on 10 August 2017. 8. The photographs taken in August show shadows cast onto W1. At both times of the day, while some shadows are clearly from vegetation, the majority of W1 visible above the balcony is shaded by the balcony above. During the hearing the applicant conceded that W2 would only receive afternoon light however he maintained his opinion that without the bamboo it would receive more sunlight than it currently does. 9. The first respondent attempted to prepare shadow diagrams using a modelling system available on the internet. He accepts that the location of the bamboo on the diagram may not be entirely accurate but he contends that his bamboo does not obstruct sunlight to W1 during the hours pressed by the applicant and that some morning and afternoon sun would be available. The first respondent submits that sunlight to W2 is not obstructed by the bamboo given its orientation and the location of the bamboo relative to it. The respondents' bundle of evidence (Exhibit 1) also includes real estate photographs taken in 2004 and 2011 of the applicant's building and unit showing shadows cast by tall trees which were growing on the respondents' property but have since been removed and replaced by the bamboo. A photograph taken from the top unit in 2012 and which shows bare upper shoots from the respondents' bamboo indicates the height at which the respondents consider is an appropriate compromise and which would maintain their privacy. [It was agreed that another photograph included in the bundle, which the respondents had thought was taken from the applicant's unit was in fact taken from a middle storey unit.] 10. The applicant's position is that while a height of 5m may not provide a full three hours of sunlight to W1 it would be an improvement over what is currently available. The applicant presses the findings in Tonoli v Rappo [2010] NSWLEC 1320 in which the value of winter sun is considered and which, he contends is in the spirit of the legislation. He also cites Haindl v Daisch [2011] NSWLEC 1145 and the proposition that the respondents' privacy is an issue but must be weighed up against the impacts of the trees on the applicant's amenity. The applicant contends that some degree of overlooking should be expected if you buy a property which adjoins three-storey apartment buildings – a case of 'buyer beware'.