Ditton v Barker and Martin

[2018] NSWLEC 1455

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ditton v Barker and Martin [2018] NSWLEC 1455
Hearing dates:	23 August 2018
Date of orders:	23 August 2018
Decision date:	23 August 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the ten Leyland Cypress trees (five along their front boundary and five along their back boundary) from their property to a height of no more than 50 cm above ground level. Works are to be done in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – hedges – Leyland Cypress – obstruction of sunlight – whether a second application can be made – obstruction limits sunlight to windows during winter – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Ditton v Barker & anor [2015] NSWLEC 1274 Hinde v Anderson and anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Sandra Ditton (Applicant) Ross Barker (First Respondent) Johna Martin (Second Respondent)
Representation:	S Ditton, litigant in person (Applicant) R Barker and J Martin, litigants in person (Respondents)
File Number(s):	2018/154679
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Sandra Ditton has lived in a residential street of Fishermans Paradise since 2001. To her north, on the neighbouring property owned by Ross Barker and Johna Martin, are two Leyland Cypress windbreaks, one along their eastern front boundary and another along their western back boundary. In each row, five trees are on the respondents’ property, though the rows continue on to the property to their north.

2. Miss Ditton says the trees in the front row obstruct sunlight during winter to her kitchen and living room window in the morning, and trees in the western row obstruct sunlight to windows of two rooms at the back of her house in the afternoon. In each case, the obstruction lasts for about two hours. She has applied 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 removed. Miss Ditton’s earlier application, made for the same reasons in 2015, was dismissed by Fakes C on the grounds that there was insufficient evidence to demonstrate a severe obstruction of sunlight: Ditton v Barker & anor [2015] NSWLEC 1274.

Can this second application be made?

3. In Hinde v Anderson and anor [2009] NSWLEC 1148, Moore SC and Thyer AC determined a Notice of Motion regarding the ability of an applicant to reapply to the Court over the same trees already dealt with in an earlier application. They discussed the changing nature of trees and the environments in which they grow, concluding that it is not uncommon for the circumstances to change and this would allow a new application to the Court. On the other hand, new evidence being discovered in unchanged circumstances would not necessarily permit a new application.

4. It seems reasonable to expect that any change in circumstances be sufficiently significant or consequential that it might lead to a different or further finding from the Court. Trees constantly grow and change, but a branch that extends a further 20 cm above a dwelling is unlikely to be significantly more hazardous than it was a year earlier.

5. In her 2015 judgment, Fakes C estimated these Leyland Cypress trees to be 12–14 metres tall. At today’s onsite hearing I estimated the front trees to be 15–18 metres tall and the western trees to be 15–17 metres tall. This growth rate of approximately one metre per annum is one reasonably expected of this species. This increase in height of ~20% might significantly affect the amount of sunlight that reaches Miss Ditton’s windows. The changed circumstances, therefore, allow her to make this application.

The situation

6. In all other respects, the situation remains exactly as described in Fakes C’s 2015 judgment: the location of the trees, the use and nature of Miss Ditton’s rooms, window sizes, and other possible obstructions of sunlight including her verandah roof and awning, a bottlebrush tree, other trees on the respondents’ property and the respondent’s dwelling.

7. The trees are planted to form two hedges and grow to more than 2.5 metres in height.

Do the trees cause a severe obstruction of sunlight?

8. Fakes C dismissed the 2015 application on a lack of evidence rather than any factual finding that there was no severe sunlight obstruction of Miss Ditton’s front windows:

16 Therefore, as there is much uncertainty as to the quantum and cause of the shading I cannot be satisfied that s 14E(2)(a)(i) is met for W1 and W2 as a consequence of any of the trees in the respondents’ eastern hedge and no orders can be made for any intervention with any of them.

… or her back windows:

18 As with W1 and W2, the applicant has not provided sufficient evidence to satisfy s 14E(2)(a)(i) and therefore the Court’s jurisdiction is not engaged.

9. Again Miss Ditton has provided no shadow diagrams or other evidence, so today’s decision relies on observations that can be made. I have observed the situation at 9:45am on 23 August, during the winter period that most concerns Miss Ditton. Now, and it appears throughout winter, the trees in the front hedge obstruct sunlight to the front windows for 1–2 hours after the sun appears above the distant hills until it is obstructed by the verandah roof. A bottlebrush in front of the kitchen window also partially contributes to the obstruction during this period. The cypress trees, however, form a dense screen and obstruct all sunlight during this period. These windows do not receive sunlight after this, but that is due to other features, not the trees. Were it not for the trees, Miss Ditton’s front windows might receive a few hours of sunlight during winter mornings, the time when this is most desired.

10. Trees in the western hedge obstruct sunlight to Miss Ditton’s back windows between 2 and 4 pm. Before this they receive some limited afternoon sunlight, and after a little more. The trees are like a wall and obstruct all direct sunlight. Were it not for the trees, Miss Ditton’s windows might receive three hours of winter afternoon sunlight, whereas they seem to receive less than one hour at present.

11. From the spring equinox to the autumn equinox, and possibly for a longer period, the trees do not obstruct sunlight to Miss Ditton’s dwelling. But it is during the winter period that access to sunlight is most important for her.

12. In my view, the obstruction caused by the western hedge to windows at the back of Miss Ditton’s property is severe during winter. At the front of the property the obstruction caused by the eastern hedge is also severe during winter. Although other features contribute to the obstruction at the front, without the cypress trees it would not be severe. Other features are beyond the control of Miss Ditton, who rents her property.

Other matters

13. I have considered the matters at s 14F of the Trees Act. Based on the expected growth rate of these trees, I accept Miss Ditton’s submission that her windows had greater access to sunlight when she first lived here, before the trees grew to this height.

14. The trees are an exotic species. They have been here for some time. They provide a windbreak for the respondents. They also provide shade for the respondents, no doubt valued during summer, but giving rise to similar issues for the respondents in winter.

15. Reducing the trees to a height that would allow sufficient sunlight to Miss Ditton’s windows would leave unattractive trees that would not recover in health or form. Therefore the trees should be removed.

Orders

16. As a result of the foregoing, the orders of the court are

1. Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the ten Leyland Cypress trees (five along their front boundary and five along their back boundary) from their property to a height of no more than 50 cm above ground level. Works are to be done in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 27 August 2018