Brain v Marsden
[2015] NSWLEC 1283
•29 July 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Brain & anor v Marsden & anor [2015] NSWLEC 1283 Hearing dates: 29 July 2015 Date of orders: 29 July 2015 Decision date: 29 July 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; obstruction not severe; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Kenneth Royce Brain (First Applicant)
Loretta Moy (Second Applicant)
Christine Marsden (First Respondent)
Stephen Rust (Second Applicant)Representation: Royce Brain and Loretta Moy, litigants in person (Applicants)
Christine Marsden and Stephen Rust, litigants in person (Respondents)
File Number(s): 20401 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
-
Houses sit closely together in Victoria Street, McMahons Point, where Mr Brain and Ms Moy (‘the applicants’) did some renovation works to their dwelling several years ago. Their neighbours to the west, Ms Marsden and Mr Rust (‘the respondents’), planted three hedges near their common boundary because of their concerns regarding privacy and overlooking. As the hedges grew, the applicants became worried that their access to sunlight and views were obstructed. The neighbours have had several discussions trying to reach a compromise that satisfies all parties, but without success. Mr Brain and Ms Moy have applied to the Land and Environment Court seeking orders for hedges to be removed or pruned. Their application is made pursuant to s 14B, Part 2A, of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), which allows an application regarding obstruction of sunlight and views. Their application includes issues of potential damage, which may be considered under discretionary matters in part 2A, but are not jurisdictional tests. For orders to be made on the basis of potential damage an application under Part 2 of the Trees Act would be required.
-
The respondents do not wish to remove their hedges but have offered to prune them at certain heights.
Framework of the Act
-
At s 14E(2) the Trees Act sets out a key jurisdictional test:
14E(2) The Court must not make an order under this Part unless it is satisfied that:
the trees concerned:
are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, or
are severely obstructing a view from a dwelling situated on the applicant’s land, and
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.
-
This jurisdictional test must be satisfied at each hedge for which orders are sought.
-
The bamboo (Hedges 1 and 2) and Lilly Pillies (Hedge 3) are all more than 2.5 metres tall and have been planted so as to form hedges. There are three groups of trees to which Part 2A applies (s 14A(1)). Bamboo is regarded as a tree for the purposes of the Trees Act (s 3(1)).
The situation
-
The onsite hearing allowed observation of the hedges and any obstruction they may cause, along with any privacy and overlooking issues.
Hedge 1
-
Hedge 1 comprises a planting of bamboo along the common boundary near the rear of the dwellings.
-
The dwellings face south to the street. Windows at the rear of the dwellings face north, where much of the solar access during winter months is available.
-
This hedge is a short section of bamboo that extends towards the rear boundary of the respondents’ property from a point near the rear of the applicants’ dwelling, the side wall of which is almost on the common boundary. The respondents say they planted this due to overlooking issues from the applicants’ upstairs bedroom and balcony, where a privacy screen at the western end of the balcony was a development permit condition. The respondents’ submissions were that the privacy screen’s louvers were not fixed as required by the condition, but could be opened and closed. The applicants demonstrated at the hearing that the louvers are fixed and that they have been fixed since they moved in, a submission which the respondents appear to accept. The applicants say they do not sit on the narrow rear balcony outside their upstairs bedroom.
-
The length of this planting was recently reduced at its northern end by the respondents. The applicants submit that the hedge obstructs views from, and sunlight to, the downstairs living room and the upstairs bedroom. There are no windows in the western walls of these rooms. Large glass windows and doors span the rear north-facing walls upstairs and downstairs.
Sunlight
-
No shadow diagrams have been provided by either party, so I rely on my own observations and the parties' submissions. The bamboo extends only a short distance northward of the rear of the applicants’ dwelling. The rear of the dwelling faces slightly west of true north. The applicants say sunlight is obstructed during the afternoon. It appears that sunlight to the window itself (the jurisdictional test) would only be during the late afternoon in winter, and that there would be very little obstruction, if any at all, in summer. Even in winter, it appears that sunlight obstruction to the window would be minimal and that further distant trees might contribute to that obstruction at the same time. I therefore do not accept that there is a severe obstruction of sunlight caused by Hedge 1.
Views
-
The applicants say they have lost views of the sky and distant mountains. The respondents say that other more distant trees obstruct those views also. I accept that some view across the western boundary to distant mountains might be obstructed, but this is a minor part of the overall view through the rear windows, which face north and provide the principal outlook to the north. Having observed the available view and the extent of obstruction, I do not accept that there is a severe obstruction of a view.
Privacy
-
The respondents made extensive submissions about their loss of privacy, but I observed that there was no significant overlooking issue at the rear of the dwelling. However, as I have found that Hedge 1 does not satisfy the jurisdictional tests, there is no need to consider further related issues regarding this hedge.
Hedge 2
-
Hedge 2 comprises a planting of bamboo adjacent to the boundary between the two dwellings, corresponding with the position of a small west-facing atrium in the applicants’ dwelling.
-
This bamboo has been pruned. The applicants contend that it obstructs sky views from their kitchen, through the atrium, and that it obstructs sunlight to the kitchen in summer and to a second bedroom in winter. The respondents say they planted this bamboo due to overlooking issues into their downstairs toilet and upstairs passageway, as well as along their side pathway. They want the applicants to install blinds across a window at their upstairs passageway to prevent them seeing into their own upstairs passageway at night. I did not observe any significant privacy issues here. I could not see any significant line of sight from the applicants’ dwelling into the respondents’ toilet window. The side access path is not a major thoroughfare. The respondents’ upstairs louvers are to a passageway only, not a living area or bedroom.
-
At its current height the bamboo does not cause a severe obstruction of sunlight or views. I accept that sky views were at least partially obstructed, and sunlight was at least partially obstructed to downstairs windows, when the bamboo was taller. However the assessment of the extent of obstruction must be made in the present, not at some time past or a possible time in the future. There is no severe obstruction at present.
Hedge 3
-
Hedge 3 comprises a row of seven Lilly Pillies adjacent to the common boundary within the respondents’ front setback.
-
The respondents planted the row of Lilly Pillies for privacy screening. The expectation of privacy in the front garden is one to which I would not give much weight. The hedge is perhaps 3 metres above ground level on the respondents’ land, and only 1.5 metres above ground level on the applicants’ land. The applicants say it blocks their view of the street when they sit on the verandah. This may be true for the street view to the west, but not to the front. The trees are so low as to not obstruct any view of more distant landscape or sky. I do not accept there is any severe obstruction of a view here.
Conclusions
-
On the basis of the foregoing reasoning, there is currently no severe obstruction of sunlight or views and so no orders will be made. The parties come across as intelligent people. The issues here of privacy, overlooking, and obstruction of sunlight and views are, on the scale of things, relatively minor, and should be able to be negotiated in a neighbourly manner if needed in future.
Orders
-
As a consequence, the orders of the Court are:
The application is dismissed.
____________________________
D Galwey
Acting Commissioner of the Court
**********
Decision last updated: 30 July 2015
0
0
1