Davis v Millar

[2016] NSWLEC 1256

Land and Environment Court

New South Wales

Medium Neutral Citation:	Davis & anor v Millar [2016] NSWLEC 1256
Hearing dates:	17 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : hedge; obstruction of sunlight; height of trees when property purchased; no proof of available solar access at time of purchase
Legislation Cited:	Trees (Disputes Between Neighbours) 2006 Blue Mountains Local Environmental Plan 2005
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280
Category:	Principal judgment
Parties:	Rodney Davis and Barbara Davis (Applicants) Pauline Millar (Respondent)
Representation:	Applicants: R & B Davis (Litigants in person) Respondent: P Millar (Litigant in person)
File Number(s):	154022 of 2016

Judgment

1. COMMISSIONER: In April 2011, the applicants purchased their Hazelbrook property. At the time, there was a row of Leyland Cypress trees growing along the southern boundary of the adjoining property to the north.

2. The respondent planted the trees in January 2003 in order to create a privacy screen between the applicants’ property and other nearby properties which overlooked her dwelling. The applicants state that the trees were approximately 5-6m tall when they purchased their property and have now reached an estimated height of 10-12m.

3. The applicants have applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning of the trees to a height of 2.5m above the concrete terrace on their property and subsequent maintenance at a height of 3m. The orders are sought on the basis that the trees severely obstruct sunlight to windows of their dwelling. The applicants’ terrace is approximately 400-500mm above the natural ground level of the respondent’s property.

4. The respondent opposes the pruning or removal of the trees.

5. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied in order to engage the Courts’ powers under s 14D to make orders. If the jurisdictional tests are satisfied, the Court is not obliged to make the orders sought by the parties.

6. There is no dispute that the 12 trees are planted so as to form a hedge and are more than 2.5m tall; this satisfies s 14A(1) of the Act. The trees are wholly on the respondent’s property.

7. As stated in their application claim form, the applicants first approached the respondent in regards to removing or pruning the hedge in June 2014. An offer of financial assistance was made. The applicants state that the respondent needed some time to think about it. The second approach was made two weeks later and the respondent made it clear that she did not want to remove or prune the trees as she valued them for privacy. As is her right, the respondent opted not to participate in an offer made by the Community Justice Centre on behalf of the applicants to mediate the dispute. It appears that there were no further discussions until the applicants filed the Class 2 application with the Court in February 2016.

8. I am satisfied that the applicants have a reasonable effort to reach an agreement with the respondent and thus the jurisdictional test in s 14E(1)(a) is satisfied.

9. The key jurisdictional test in applications made under Part 2A is found in s 14(E)(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.

10. The applicants have nominated ten windows of their dwelling, which they contend, are severely affected by the respondent’s trees. According to the diagram in the application claim form, the applicants’ dwelling is orientated on a northeast to southwest axis on a block that is orientated from east to west. The trees are in a row that runs east to west along the dividing fence. The windows are described in the following table.

11. Windows 2-4 comprise a bay window as do windows 8-10. Windows 5-7 are in a central, recessed section of the dwelling, between the living and dining areas.

Window	Orientation	Room
W1	Northeast facing	Living room
W2	North facing	Living room
W3	Northwest facing	Living room
W4	West facing	Living room
W5	Northwest facing	Glass sliding door to kitchen open plan living room
W6	North facing	Kitchen
W7	Northeast facing	Dining room
W8	North facing	Dining room
W9	Northwest facing	Dining room
W10	West facing	Dining room

12. In their application claim form, the applicants have included a table that provides for each window, the approximate number of hours of available direct sunlight, the light loss as a consequence of the hedge, and the total number of hours and percentage of sunlight lost. The nominated dates are 24 July 2014 and 14 August 2015. They estimate losses of between 55-100%; the 100% losses being to windows 2, 3 and 4 to the main living room. How these estimates were made is unknown, but appear to be based on a number of time and date stamped photographs included in the claim form.

13. The claim form also includes photographs of the parties’ properties from Google Street View taken in January 2008, January 2010, July 2014, and May 2015. The photographs are included to demonstrate the growth of the hedge.

14. During the onsite hearing, the trees were inspected from the parties’ properties. Neither party engaged an arborist to provide independent advice. With the arboricultural expertise I bring to the Court, I observed the trees to be healthy specimens with no obvious structural or other problems. The trees are probably about 9-10m tall. The height of the trees shown in the Google Street View photographs was estimated by setting up a 6m height stick then viewing the trees and the stick from the approximate location the photographs were taken. Particular attention was given to the photographs taken in 2010, about 15 months before the applicants purchased their property. The exercise verified the applicants’ estimated height of 5-6m when they moved in.

15. With the benefit of the site inspection I am satisfied that the trees the subject of the application are severely obstructing sunlight to at least the living room and kitchen windows. This satisfies sub clause 14E(2)(a)(i). In considering the balancing of interests inherent in s 14E(2)(b), it is useful to consider the matters in s 14F. The following matters are relevant.

• The trees were planted before the dwelling on the applicants’ land was completed and, with the benefit of the Google Street View photograph from 2010, it was clear that the trees were at least 5-6m tall and thus very well established when the applicants’ purchased their property in April 2011. There is an expectation that trees continue to grow. (s 14F(b)(c).

• Any pruning or removal of the trees to the height requested by the applicants would ordinarily require consent from Blue Mountains City Council under cl. 54 Blue Mountains Local Environmental Plan 2005 (s 14F(d).

• With the expertise I bring to the Court, pruning the trees to 2.5m would result in excessive removal of foliage (about 70% of the trees) and place the trees under considerable stress; in my view this would be an unacceptable outcome (s 14F(k)).

• The trees contribute to the amenity and privacy of the respondent’s property (s 14F(l)).

• Section 14F(m) considers anything other than the trees which may contribute to the obstruction. The applicants have identified groups of trees to the northeast and northwest of the dwelling that may contribute to shading. A group of eucalypts on the western corner of the respondent’s land is most likely to cause some obstruction to windows 4-10 in the late afternoon. The applicants have not provided any shadow diagrams. It is likely that there is a degree of self-shading created by the applicants’ dwelling to windows 4, 5, 6 and 7 for part of the day. Windows 2 and 3 are only about 3m from the dividing fence.

• The trees are evergreen; the affected windows are windows of the open plan living room, kitchen and dining area (s 14F(p) and (r)).

• Section 14F(s) enables the Court to consider any other matter it considers relevant in the circumstances of the case. This is discussed below.

16. The applicants have not included any shadow diagrams that indicate the shadows cast by the trees at the heights they were when they purchased their property. The 2010 Street View photograph shows the trees to have been above the ridge height of the garage and approaching the higher ridge of the remainder of the house. By April 2011, it is likely the trees may have been as high as that ridge and thus well above the height of the eaves. Windows 2 and 3 are only about 3m from the dividing fence; therefore it is highly probable that these windows were fully obstructed when the applicants’ moved into their dwelling.

17. In discussed in McDougall v Philip [2011] NSWLEC 1280 at [20] – [25], the incorporation of Part 2A into the Trees Act did not create a right to light or views. While that decision concerned views, the same principles apply to light. The decision includes a discussion of the 2009 Review of the Trees Act – see below [emphasis added]:

20   The applicant seeks orders that would substantially increase the view from her dwelling, and in effect, create a view that was not available to the applicant when she moved in. This, in my opinion, is not why the Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling.

21 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act.

The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies.

The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act.

The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review.

22   Relevantly, the “Review of the Trees (Disputes Between Neighbours) Act 2006” undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court’s web site since the amended Act came into force…]

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.

23   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 [or in this case a view] which had not existed at the time of the purchase.

24   The amended Act incorporates all of the recommendations made in the review.

18. Therefore the height requested by the applicants is far lower than the height of the trees when they moved in and would provide solar access which in all likelihood did not exist at the time of purchase. If any orders for pruning were to be made, the height of pruning would be limited to at least 5.5m.

19. The applicants have not provided any verifiable photographs taken of the property from their time of purchase that could be used to demonstrate the solar access they may have had. There is an undated photograph used by the real estate agent; however, the date that this was taken is unknown. Similarly, the applicants have not provided any shadow diagrams that would show the amount of sunlight they may have received when the trees were 5-6m tall. Therefore there can be no certainty as to what benefit there would be if pruning were to be ordered to that height.

20. Although I am satisfied that some pruning would not compromise the value of the trees as a privacy screen, given the uncertainty around the solar access available to the applicants at the time of purchase, I cannot determine whether the severity and nature of the obstruction is such that the applicants’ interests outweigh other reasons for pruning the trees. That is, I find that s 14E(2)(b) is not satisfied in the applicants’ favour. As this is the case, no orders can be made and the application must be dismissed.

21. The Orders of the Court are:

1. The application is dismissed.

____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 23 June 2016