Drewett v Best - [2010] NSWLEC 1305

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Drewett v Best [2010] NSWLEC 1305

PARTIES:
APPLICANT
Kel Drewett

RESPONDENT
Gwen Best

FILE NUMBER(S):
20628 of 2010

CATCHWORDS:
TREES (NEIGHBOURS) :- obstruct sunlight to windows - obstruct views from dwelling.

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CORAM:
Brown CFakes C

DATES OF HEARING:
1 November 2010

JUDGMENT DATE:
9 November 2010

LEGAL REPRESENTATIVES

APPLICANT
In Person

RESPONDENT
Mr Pearce, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Brown C and Fakes C
9 November 2010
20628 of 2010 Kel Drewett v Gwen Best

JUDGMENT

COMMISSIONERS: This is an application under Part 2A of the Trees (Disputes Between Neighbours) 2006 (the Act) made by the owner of a property in Princes Street Putney regarding trees on the adjoining property that is claimed obstruct sunlight to, and views from his dwelling. Mr Drewett (the applicant) was self represented and resides in a unit in a group of four attached units constructed around 1999. The applicant’s unit is the last in the group and adjoins the rear boundary.
Mrs Best was represented by a family member, Mr Pearce (the respondent). This property adjoins the applicant’s property on the south-western boundary. This property contains a single dwelling, pool and an outdoor recreation area. The trees in question are located towards the rear of the site near the applicant’s unit.
An inspection of both sites was undertaken on the morning of the hearing. The inspection of the properties was undertaken with the owner of each property but in the absence of the owner of the adjoining property as the respective property owners denied access to their properties to their neighbour. As it was necessary for the Court to view each property, each party was advised that during the inspection of each property, no comments should be made to the Court on any aspect of the case beyond identifying matters set out in the application and any responding correspondence from the respondent. The parties were advised of the Courts observations following each inspection.
The applicant’s unit was inspected from the balcony area adjoining the living room and the windows identified as being the windows the subject of the claim of obstruction of sunlight were identified. These were the two full height living room windows (windows W1 and W2) and the full height window of the main bedroom (window W3). Other outdoor areas to the north and west were also inspected. Some measurements were taken of the height of the existing trees and the height of existing retaining walls. Observations were made from the balcony area adjoining windows W1 and W2 generally to the south where it was claimed that the view loss occurred. Observations were also made of the existing landscaping and the area available for landscaping on the site. The Court was also taken to the outdoor entry area of the adjoining unit (Unit 3) were it was claimed that similar views were available from the balcony area adjoining windows W1 and W2.
The property containing the trees was inspected and it was found that the number of trees varied from that identified by the applicant in his original application and also his further details. The trees in the area adjoining the applicant’s unit were:
•6 x Tecomaria capensis (Cape Honeysuckle), a part climbing shrub, located directly adjoining the brick retaining wall on the common boundary with heights around 5 m,
•4 x (Syzygium sp) (Lillypilly) located in a row approximately 1.5 m from the common boundary with heights around 5 m,
•1 x Camphor Laurel (Cinnamomum camphora), a mature species in excess of 40 years old and located towards the rear of the site and some 8 m from the common boundary, and
•1 x Murraya paniculata located towards the rear of the site and between the Camphor Laurel and the row of Lillypillys.
The application
Mr Drewett is seeking orders that require the pruning of trees located on the adjoining property to reduce their height because the trees obstruct sunlight and views. The trees are located between the living room and main bedroom of his unit and near the common boundary with the adjoining residential property
As Mr Drewett could not gain access to the adjoining property, the application was unclear as to the specific trees that he sought to be reduced in height. Mr Drewett provided further details although these details still did not identify the specific trees. Following the site inspection, the number, location and type of trees on the adjoining properties was explained to Mr Drewett. In his submissions to the Court, Mr Drewett limited his application to the 6 x Tecomaria capensis and the 4 x Lillypilly.
The framework for consideration
Section 14A(1) provides:
14AApplication of Part
(1) This Part applies only to groups of 2 or more trees that:
(a) are planted (whether in the ground or otherwise) so as to form a hedge, and
(b) rise to a height of at least 2.5 metres (above existing ground level).
Section 14B provides:
14BApplication to Court by affected land owner
An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:
(a) sunlight to a window of a dwelling situated on the land, or
(b) any view from a dwelling situated on the land,
if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
Section 14D(1) provides:
14DJurisdiction to make orders
(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:
(a) sunlight to a window of a dwelling situated on the applicant’s land, or
(b) any view from a dwelling situated on the applicant’s land,
if the obstruction occurs as a consequence of trees that are the subject of the application concerned.
Section 14D(2) provides the powers to make an order under subsection (1).
Section 14E(2) provides:
14EMatters of which Court must be satisfied before making an order
.
(2) The Court must not make an order under this Part unless it is satisfied that:
(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.
Section 14F provides for the matters to be considered by the Court before determining an application.
Findings
Section 14A
Based on the site inspection, we are satisfied that the 6 x Tecomaria capensis and the 4 x Lillypilly satisfy the requirements of s 14A(1) in that the two groups of trees each contain two or more trees (s 14A(1)), are planted so as to form a hedge (s 14A(1)(a)) and have height of at least 2.5 m (s 14A(1)(b)).
Section 14D
Sunlight to a window
Mr Drewett did not provide details on his claim that the trees in question create a "severe obstruction of sunlight to a window" of his dwelling. No shadow diagrams were provided to show the effect of loss of sunlight from the trees. We observed the nominated windows (W1, W2 and W3) on the site inspection. The impact on these windows was refuted by Mr Pearce, on behalf of the respondent, on the basis of the generally south-westerly orientation of these windows.
Section 14D(1)(a) raises three separate matters. First, the obstruction must be “sunlight”, second, it must be to a "window" and third, any obstruction must be “severe”.
Even in the absence of any shadow diagrams, we are satisfied that given the south western orientation of windows, the windows in question would receive no sunlight in the morning or early afternoon and that the large camphor laurel on the adjoining property (that is not subject to this application) and the large Fiddlewood tree on the diagonally opposite property to the west would likely deny any afternoon sunlight to windows W1, W2 and W3. In coming to this conclusion, we have accepted that the word "sunlight" in the Act is a reference to direct sunlight, rather than just daylight.
In accordance with s 14E(2), we are not satisfied that the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land, and as such no order can be made in relation to this contention.
View from a dwelling
Section 14D(1)(b) raises two separate matters. First, there must be an obstruction of “any view” from the applicant’s dwelling and second, any obstruction must be “severe”.
On the first matter, we are satisfied that there is a view available in a generally southerly direction from the balcony area adjoining the living room. At present, the trees in question (in addition to other trees) block all views from this location. We do not accept the submission of Mr Drewett that views from this area would be the same as from Unit 3, which was visited on the site inspection. In our assessment, the existing Camphor Laurel and Fiddlewood trees, because of their age, size and canopy spread would limit views in a south-westerly direction although a narrow view corridor would be likely available in a southerly direction. This view corridor would likely provide some district views and glimpses of the Parramatta River.
In considering the relevant matters in s 14E, we find that a reduction in the height of the trees can be justified for a number of reasons. First, the trees did not exist prior to the construction of the applicant’s dwelling (s 14F(b)). Second, the trees grew to height exceeding 2.5 m since the applicant has occupied the dwelling (s 14F(c)). Third, the pruning of the trees will not unacceptably impact on their health and vigour (s 14F(k)). Fourth, the pruning of the trees will not impact on the privacy provided by the trees on the respondent property (s 14F(l)) and at the same time provide views from the applicants property (s 14F(q)).
The documentation provided to the Court highlighted the ongoing dispute over the issue of privacy for the respondent’s property from the time construction commenced after the 1998 approval of the four unit development. The issue of privacy was addressed in the approval through the provision of a lattice screen on the edge of the balcony area adjoining the living room and landscaping on the property boundary. It is not necessary to repeat the history of these features but it is sufficient to say that the lattice screen and the boundary landscaping were ineffective in providing a barrier for overlooking. Unsurprisingly, the respondent addressed the unsatisfactory response to the issue of privacy by planting trees in their own property.
We are not satisfied that the submission of Mr Pearce that Mr Drewett has no right to a view is necessarily correct. While no person has an exclusive right to a view, we are generally satisfied that the conditions of approval relating to the lattice screen and the boundary landscaping for the four unit development would allow the distant views to be retained (even if viewed through the lattice screen) while still providing a level of privacy for the adjoining property. Provided that the landscaping was trimmed to a level that maintained this privacy, the distant views would still be available through the lattice. We see no reason why this approach could not be maintained through the trimming of the trees on the respondent’s property.
In accordance with s 14E(2), we are satisfied that the trees are severely obstructing a view from a dwelling situated on the applicant’s land, and as such an order can be made in relation to this contention. In coming to this conclusion, we find that the view loss is "severe" because the trees in question obstruct all views from the applicants dwelling. The fact that the likely views that would result from the trimming of the trees will have a relatively narrow view corridor is not a reason to diminish their importance particularly as these views are the only views available from the applicant’s dwelling.
We can comfortably conclude that the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction remedied outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees particularly given those matters in the previous paragraphs.
Section 14D(1)(b) enables the Court to make any orders as it thinks fit to remedy, restrain or prevent the severe obstruction of a view from a dwelling situated on the applicant’s land. Section 14D(2) outlines the range of orders the Court may make.
In this matter it is reasonable that the 6 Tecomaria and 3 of the Lillypillys be reduced in height in order to restore that part of the applicant’s view that is capable of being restored under this Act. The 3 Lillypillys are the 3 at the south-eastern end of the row. The fourth Lillypilly is growing into the foliage of the Camphor Laurel and as no order can be made with respect to that tree, there is no benefit in ordering interference with that Lillypilly.

In terms of who should pay for this, we consider that as the benefit goes to the applicant, the applicant should contribute to the cost of the initial pruning. Thereafter, the responsibility will lie with the respondent to maintain the nominated plants at the specified height. We consider a height of 3.5m is appropriate in order to provide a view to the applicant and maintain privacy for the respondent. This may require the plants to be initially reduced to approximately 3m to allow regrowth up to 3.5m.

Orders

The Orders of the Court are:
1.The application is upheld, in part
2.The respondent is to engage and pay for an AQF level 3 arborist or horticulturist to prune the 6 Tecomaria capensis and the 3 Lillypillys to an appropriate point where they can be maintained at a height of 3.5m above ground. This may necessitate the initial pruning to be less than 3.5 m.
3.The applicant is to reimburse the respondent 50% of the cost of this work within 21 days of the receipt of a tax invoice.
4.The respondent is to maintain the plants nominated in order 2, at a maximum height of 3.5m at their cost.

__________
G T Brown
Commissioner of the Court
________
J Fakes
Commissioner of the Court