Chambers v Graham

[2020] NSWLEC 1457

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chambers v Graham [2020] NSWLEC 1457

Hearing dates:

27 July 2020

Date of orders:

28 September 2020

Decision date:

28 September 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court Orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – obstruction of sunlight – whether the obstruction is severe – whether the applicant has lost access to sunlight

Legislation Cited:

Trees (Disputes Between Neighbours Act) 2006 (NSW)

Cases Cited:

Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

Michael Chambers (Applicant)
Simon Graham (Respondent)

Representation:

M Chambers (litigant in person) (Applicant)
S Graham (litigant in person) (Respondent)

File Number(s):

2020/112289

Publication restriction:

No

Judgment

Background to the application

1. In February of this year Michael Chambers (‘the applicant’) purchased a residential property in Pottsville, on the far north coast of New South Wales. He and his family moved to the area to retire. During the month of March Mr Chambers had two conversations with his new neighbour, Simon Graham (‘the respondent’), concerning a row of trees (‘the hedge’) growing on Mr Graham’s property, along their common boundary. Mr Chambers explained that, due to the trees, his kitchen and living areas are dark, even during bright mornings. He wanted the trees pruned to allow more light to reach his dwelling. Mr Chambers obtained quotes for having the trees pruned and offered to share the costs.

2. In April Mr Chambers then filed his application to the Court, pursuant to s 14B of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for the trees to be pruned and maintained at regulation fence height or at no more than 2.5 metres. Alternatively, he sought removal of the trees and replacement with “less invasive” trees maintained at a height no greater than 2.5 metres.

3. Mr Chambers’ application included proposed orders under Part 2 of the Trees Act, but he clarified during an earlier directions hearing that his application is made only under Part 2A, seeking orders to address an obstruction of sunlight caused by neighbouring trees.

The hearing

4. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy. As well as the material initially filed, both parties sent in additional photographs prior to the hearing, as allowed by further directions. Both parties were self-represented. I was satisfied from the material filed with the Court, considered along with the parties’ submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

Framework for this decision

5. For the Court to make orders under Part 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (in this case the application concerns only sunlight, not a view) (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).

The trees form a hedge

6. Approximately 40 Lilly Pilly trees have been planted in a straight row, at regular spacings, on Mr Graham’s property along the common boundary shared with Mr Chambers. The trees form a screen along the boundary. The planting has all the traits of a hedge. Mr Chambers described the trees as 7–8 metres tall. I am satisfied that the trees form a hedge reaching a height greater than 2.5 metres.

The applicant made reasonable effort

7. After purchasing the property in February 2020, Mr Chambers had two conversations with Mr Graham concerning the hedge in late March. Mr Chambers invited Mr Graham to his property to see and better understand his issues with the hedge. Mr Chambers wrote to Mr Graham in early April, again outlining his issues with the hedge. Mr Graham disputes that the effort made by Mr Chambers was reasonable.

8. I am satisfied that, through his conversations with Mr Graham and the letter he wrote, Mr Chambers made reasonable effort to resolve his issues concerning the hedge with Mr Graham.

The trees do not severely obstruct sunlight to the applicant’s windows

9. Mr Graham’s property is to the east of Mr Chambers’ property, so the hedge only affects the eastern side of Mr Chambers’ dwelling. At the front on this eastern side is a large garage without windows on its eastern wall. Behind this is a covered outdoor area (‘Alfresco Area’), with the dwelling’s kitchen and living room set further back from the common boundary, as shown in the following section from a plan filed with the application.

10. Mr Chambers submitted that he plans to convert part of the garage into an additional bedroom that will include a new window in the eastern wall. In making this decision I cannot consider a potential window that may never materialise.

11. Although notation on the plan states “Alfresco Area 1.8m x 1.07m”, it is clear from the plan and accompanying photos that the alfresco area is more than 3 metres wide. The hedge and two views of the alfresco area can be seen in the applicant’s photos below.

12. In the photo on the right is the kitchen window. To the north of that (not shown) is the living room’s floor–ceiling sliding glass door. The photos above were taken during the early morning in early April. Even then, Mr Chambers’ own roof and eaves appear to entirely prevent any sunlight reaching these windows. It is evident from the photos that the kitchen and living room windows might receive direct sunlight only very briefly, if at all, in the early morning were it not for the hedge.

13. Based on the above, I am not satisfied that the hedge is severely obstructing sunlight to any of Mr Chambers’ windows. Because this does not meet the jurisdictional test at s 14E(2)(a) of the Trees Act, it follows that I cannot make any orders to interfere with the hedge.

The applicant has not lost access to sunlight

14. Even if I found that the hedge does severely obstruct sunlight to Mr Chambers’ windows, before making any orders I would be required to consider relevant matters at s 14F of the Trees Act, including the nature of the hedge at the time Mr Chambers purchased his property.

15. The Court has consistently taken the approach in Part 2A applications that an applicant must have lost access to sunlight or views they previously enjoyed during their ownership or occupation of their property (for instance, Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150 at [49]).

16. Mr Chambers only purchased and moved to this property in February 2020. In his application he makes it clear that the trees were the same height then as now, and the sunlight problem existed for him from the outset. On this basis, I would be unlikely to order pruning of the hedge even if I had found it causes a severe sunlight obstruction to Mr Chambers’ windows.

Other matters

17. Mr Chambers also complained of debris falling from the trees onto his property. This is not an issue that can be addressed by orders under Part 2A of the Trees Act.

18. The parties also referred to other matters including a carport that has been demolished, communications with other neighbours and apparent threats made by one of the parties. These are not matters that need to be considered in making this decision.

Orders

19. For the reasons given above, the Court orders:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Amendments

01 September 2021 - Amended jurisdiction to Class 2.

Decision last updated: 01 September 2021