Hamman v Ip

[2015] NSWLEC 1416

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hamman v Ip [2015] NSWLEC 1416
Hearing dates:	16 October 2015
Date of orders:	16 October 2015
Decision date:	16 October 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; severe obstruction of sunlight; insufficient evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Local Government Act 1993
Cases Cited:	Deville & anor v Frith & anor [2014] NSWLEC 1002 Hinde v Anderson & anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Zelda Hamman (Applicant) Danuta Ip (Respondent)
Representation:	Applicant: Harry Hamman (Agent) Respondent: Danuta Ip (Litigant in person)
File Number(s):	20659 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to four metres and subsequent annual pruning of two rows of trees growing on the respondent’s property.

2. The orders are sought on the contention that the trees severely obstruct sunlight to 11 nominated windows of the applicant’s St Ives dwelling; specifically (as stated in the Application Claim Form) – “about 70% of sunlight is lost from sunrise to 11am every day of the year”. The response in the claim form indicates that at the time the application was made (late July) there was no direct sunlight to any of the nominated windows.

3. The respondent disputes the claim and produced photographs taken of the rear of the applicant’s dwelling at various times of the day and year which, she says, demonstrate that the trees don’t severely obstruct sunlight to the nominated windows during the period claimed by the applicant.

4. Section 14B Part 2A enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the applicant’s land, or severe obstruction of a view from a dwelling situated on the applicant’s land, if the obstruction occurs as a consequence of trees to which this Part applies. This application is confined to obstruction of sunlight.

5. Before the Court’s powers to consider if the orders the applicant seeks should be made, there are a number of jurisdictional tests that must be sequentially satisfied.

6. The first is whether the trees are trees to which Part 2A applies. Section 14A(1) states:

(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 2.5m (above existing ground level).

7. The trees are a row of x Cupressocyparis leylandii ‘Leighton Green’ (Leyland Cypress - referred to in the application as ‘Leylandii’) and a row of Cupressus torulosa (Bhutan Cypress – indicated as ‘Pencil Pines’). The trees are growing along part of the southern boundary of the respondent’s property adjacent to the dividing fence that separates the parties’ properties. All are in excess of 2.5m tall.

8. According to the respondent’s evidence, in response to an Order issued under s 124 of the Local Government Act 1993 the respondent was required to install screen planting using a species that would attain a height of 4-6m along the perimeter of a tennis court for which a Building Certificate had been issued. The planting was to be carried out before the completion of the court sometime in the period 1996-1998. The respondent planted Bhutan Cypress and Variegated Pittosporums in response to the order. Most of the inter-planted Pittosporums have been removed and the Bhutan Cypress trees remain. According to the respondent, the Leyland Cypress trees were planted in 2005, together with another row along the eastern boundary, in order to screen the respondent’s pool and dwelling and to provide a windbreak.

9. I am satisfied on the basis of the linear arrangement, spacing and species choice that trees are planted so as to form two hedges. Thus s 14A(1)(a) is satisfied for these trees.

10. The next relevant test is found in s 14E(2) this 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.

11. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant’s land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.

12. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing a view at the time of the hearing. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.

13. The applicant nominates 11 windows on the generally northern or rear façade of her dwelling. Most of the windows are north-facing with one east-facing and one west-facing window also included.

14. The only evidence in support of the claim comprises six photographs taken by the applicant on 23 July 2015; five were taken around 3.30pm (weather observed to be cloudy) and photograph 4 was noted as being taken at 10.42am (blue sky). The photographs are principally of the trees and the applicant’s pool with small sections of the dwelling included in some photographs. Only photograph 4, taken from the street to the east and showing a portion of the north-eastern part of the dwelling, was taken during the time said to be the period of the day most affected by the trees. There are no photographs of any shadows on any of the nominated windows nor are there any shadow diagrams.

15. The only photographs illustrating the extent of shading of the applicant’s property are included in the respondent’s evidence. These are photographs taken from the respondent’s property in August, September and October at various times of the day and including the time period in contention. The photographs show some shading as a consequence of the applicant’s palms and a Eucalypt on an adjoining property to the west, as well as self-shading by the applicant’s dwelling. While the court hearing was conducted in the morning in mid-October and not when the sun might be at its lowest angle, the evidence on site was that during the time period contested by the applicant, there was no obstruction of sunlight to almost all of the nominated windows as a consequence of the respondent’s trees. Only W1 appeared to have a minor obstruction.

16. Therefore as the trees to which the Part applies are not severely obstructing sunlight to any windows of the applicant’s dwelling, the Part 2A application must be dismissed.

17. The applicant remains concerned about the future impacts of the trees. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. This has been considered in Part 2A applications – see Deville & anor v Frith & anor [2014] NSWLEC 1002.

18. As a consequence, the Orders of the Court are:

1. The application is dismissed.

___________________________

Judy Fakes

Commissioner of the Court

**********

Decision last updated: 16 October 2015