Huang v Kennedy

[2015] NSWLEC 1487

Land and Environment Court

New South Wales

Medium Neutral Citation:	Huang v Kennedy & anor [2015] NSWLEC 1487
Hearing dates:	24 November 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]: Hedge; obstruction of views and sunlight;
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Applicant: Jocelyn Huang Respondents: John and Roslyn Kennedy
Representation:	Applicant: Dr Huang (Litigant in person) Respondents: Mr M Staunton (Barrister)     Solicitors: Respondents: Jaku Legal
File Number(s):	20785 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning to various heights of a row of x Cupressocyparis leylandii ‘Leighton Green’ (Leyland Cypress) growing on the adjoining Darling Point property.

2. The orders are sought on the basis that the trees severely obstruct sunlight to windows of the applicant’s dwelling and severely obstruct iconic views of the Harbour Bridge from her dwelling.

3. The applicant owns a unit on the lower residential level of a four storey duplex – the main living areas and bedrooms are on the third floor. Initially the application under Part 2A of the Trees Act was made by the Strata/ Owners Corporation. However, as Part 2A does not generally relate to common property but to individual dwellings, two separate applications were made by two of the owners – one being the applicant in these proceedings and the other the owner of the unit above. The other proceedings were subsequently discontinued.

4. During the hearing the applicant agreed not to press the first of the two proposed orders which concerned the pruning back and maintenance of four trees 2m from the face of the building. These orders were erroneously copied from the original application made by the Strata/Owners Corporation and relate to matters more appropriately considered under Part 2 of the Act.

5. The remaining order seeks the pruning of nine trees to a level no greater than 300mm above the window sills marked W5 and W6 on the diagram included in the application claim form. These are two bedroom windows on the western side of the applicant’s dwelling.

6. The respondents oppose these orders on the basis that, given the height and proximity of the adjoining property, the trees provide significant privacy and amenity to their principal area of private open space and their swimming pool. They contend that reducing the trees to the level sought by the applicant would result in direct overlooking from the applicant’s property, and more importantly, from the unit above.

7. In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before the Court’s power to make orders under s 14D is engaged.

8. The first test is s 14A and whether the Part applies to the trees the subject of the application.

9. While there is some dispute as to when the trees were planted (see [24] –[28]), there is no dispute between the parties that the trees in question comprise two or more trees which are planted so as to form a hedge and which rise to a height of at least 2.5m above ground level. The trees are growing in a planter box along the eastern boundary of the respondents’ property close to the dividing fence between the parties’ properties.

10. Notwithstanding the disputed date of planting, I am satisfied that the trees the subject of the application are trees to which Part 2A applies.

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

12. 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.

13. The use of the word ‘are’ in s 14E(2)(a)(i) requires the trees to be severely obstructing the 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.

14. The applicant has nominated four windows and viewing points – all on the western side of her dwelling – the windows are numbered from south to north. Windows 5 and 6 (W5/V5, W6/V6) are bedroom windows; W7/V7 is a bathroom window; and W8/V9 is a window in a walk-in wardrobe. The main bedroom, living areas and associated balcony are at the northern end of the building.

Sunlight

15. The applicant did not provide any shadow diagrams. In the application claim form the applicant states that as the nominated windows are west-facing, the only opportunity for receiving direct sunlight is in the afternoon. The applicant submits that as the trees, which she estimates to be about 8.5m tall, are only about 2m from the windows, the windows receive much less sunlight than was available when she occupied her property. She states that in winter (June) of a total of 4.5 hours of available sun the windows receive only 1.5 hours of direct sunlight; in spring (September) 2 hours out of a possible 5.5 hours; and in summer (December) 2.5 hours out of a possible 7 hours. There is no indication as to how these figures were determined.

16. The applicant also alleges that the reduced direct sunlight causes dampness and mould on the stairs and entry level as well as on inside walls of the bedroom. She maintains that this creates slippery conditions and implies that the mould may be a problem for her asthmatic son.

17. The respondents engaged Mr George Karavanas, Town Planner, to prepare an expert report (Exhibit 1) and provide oral evidence. Mr Karavanas’ report includes two shadow diagrams said to have been prepared by an architect which appear to support the applicant’s observations that the windows receive up to 1.5 hours of direct sunlight in winter, and possibly up to 2 hours.

18. Mr Karavanas’ report cites cl. B3.5.2C1b in Woollahra Development Control Plan which, if the respondents’ dwelling were to be built today, requires that “north facing windows to upper habitable rooms of adjacent dwellings receive at least 3 hours of sun between 9am and 3pm on 21 June over a portion of their surface”.

19. Mr Staunton for the respondents supports Mr Karavanas’ conclusion that from a planning perspective the current exposure is compliant, and submits that on the applicant’s own evidence of sunlight at other times of the year, the level of obstruction as a consequence of the respondents’ trees is not severe and the Court has no jurisdiction to further consider the matter.

20. However, Mr Staunton contends that should I consider the impact is sufficient to engage the Court’s jurisdiction, he argues that the affected rooms are not living rooms and are rooms that are ordinarily used more at night. Even if they were used during the day, he maintains, by reference to council’s planning controls, they obtain adequate solar access at all times of the year and given the privacy issues that would arise if the hedge were to be pruned to the extent sought by the applicant, on balance and on the merits, the application in regards to sunlight should be dismissed.

21. I am not satisfied on the applicant’s evidence that there is a severe obstruction of sunlight to the nominated windows. While Mr Karavanas’ report includes two shadow diagrams I find them of limited value as they are not dimensioned in any way and the time of year is not specified, although it might be assumed that they are based on the winter solstice. That said, they appear to at least support the applicant’s figures. I accept Mr Staunton’s submissions that that the threshold of ‘severe’ obstruction has not been achieved and even if it had, I also agree that given the nature of the nominated rooms and the absence of any impact of the trees on the applicant’s north facing living area and private open space, on balance, no orders would be made for any interference with the trees on the basis of sunlight. In regards to mould and asthma, these are matters usually considered in applications under Part 2.

22. As s 14E(2)(i) is not satisfied, the application with respect to sunlight is dismissed.

Views

23. In the application claim form (Exhibit A, p 10) the applicant states that:

Until 1999, or thereabouts, the boundary fence between the subject properties consisted of a brick wall of varying heights and variously acting as a retaining wall. The brick wall was topped with various panel materials such as pine lattice and polycarbonate sheeting. The overall effect being a boundary fence averaging 2 to 2.5 metres above paving level on Strata SP 4755 property. Shrubs and some clumps of bamboo were growing near the fence line on the adjoining property.

Around 1999, the various materials that extended above the brick wall were replaced by a brush fence which still remains today.

Sometime after the brush fence, a number of Leyland Cypress trees (T5 to T16) were planted on the adjoining property close to the boundary. Trees T1 to T4 were existing.

At the time, the trees T5 to T16 did not project above the brush fence and had no effect on us or our property.

24. There is some dispute as to when the trees were planted. In their sworn affidavits the respondents and their gardener state that the trees were planted in 1994 after the removal of an existing lattice trellis and a row of bamboo and the installation of a new brushwood fence. In oral evidence given on site, Mr Lee, the respondents’ gardener, recalled that he and one or more assistants planted the trees from 100 litre containers and the trees were at least 3-4m tall. In his sworn affidavit, Mr Lee states that the trees extended above the applicant’s windows. These trees supplemented several existing Cupressus torulosa (Bhutan Cypress) trees, of which two remain.

25. In their affidavits the respondents state that the previous owner of the applicant’s property, Dr Hickman, requested the removal of the bamboo because the roots were causing plumbing problems. They state that the bamboo was at least 4m tall. At the same time, because of the state of disrepair, they removed the trellis and the fence.

26. In Dr Hickman’s sworn affidavit he states that he lived in the applicant’s property from 1994-2000. He says in 1994 there were unobstructed views of Sydney Harbour Bridge from the two west-facing bedrooms. In oral evidence, Dr Hickman stated that he purchased the property in 1993. The property was then rented and renovated and he lived there from 1996 to 1999. He stated that there was a trellis fence and bamboo but they didn’t interfere with the views. Dr Hickman also stated that the trellis was removed in about 1995-1996, then the bamboo was removed and the brush fence built and there was a view of the Bridge.

27. During the hearing the applicant stated that she moved into her property in 1997, the bamboo and lattice trellis were still there and the trees were not planted until May 1998.

28. The applicant presses this timing as it goes to her case that she had the benefit of direct sunlight and of views to the Harbour Bridge when she moved into her property. Mr Staunton contends that there was always a hedge of some form – originally bamboo and other conifers; from 1994 the Leyland Cypress projected above the fence and while there may have been a brief period of uninterrupted view, the applicant is seeking more of a view than she originally had the benefit of.

29. The applicant claims that the following views have been severely obstructed by the respondents’ trees:

• Iconic views to the west from all windows;

• Views across roof tops of most of the Harbour Bridge;

• Panoramic view across roof tops of Sydney CBD skyline across to the full Harbour Bridge and North Sydney from W6;

• The CBD and most of the Bridge and North Sydney from W7; and

• A partial view of the CBD and Harbour Bridge from W8.

30. The applicant did not provide any photographic evidence of the views she says she has lost.

31. During the hearing the view from each of the nominated viewing points was observed. It was possible to discern the disputed views through the trees.

32. In determining severity of impact, the Court frequently has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 at [26] – [29]. The first three steps of this Principle are quite applicable to applications made under Part 2A.

33. In Tenacity at [26] –[29] relevantly:

26 The first step is the assessment of the views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views….

27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people need to spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless….It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

34. In applying Tenacity to this matter, the potential views to the west certainly include icons, in particular the Harbour Bridge. The views are views across side boundaries from bedrooms and service areas. When the views from the whole of the property are considered, a partial view of the Bridge is available from the western corner of the northern balcony. There are expansive views to the north and northeast up the Harbour to Manly and North Head including Shark Island, Taronga Zoo, Dobroyd Head and Vaucluse. These views are available from the large balcony that adjoins the main bedroom and living room and are unaffected by the respondents’ trees.

35. While I accept that the impact of the respondents’ trees on the views to the west is severe, when considered as a whole I find the impact of the respondents’ trees on the overall views available from the applicant’s property is on the lower end of moderate. This is principally because the applicant’s dwelling is oriented to take advantage of the northerly aspect and generally expansive views of the harbour to the north and northeast.

36. Even if I were to find s 14E(2)(a)(ii) met, in considering the balancing of interests inherent in s 14E(2)(b), I am not satisfied that the applicant’s interests in having the obstruction remedied or restrained outweigh other relevant considerations in s 14F and therefore interfering with the trees is undesirable.

37. In this matter and in addition to the matters already discussed:

• Neither party provided dated photographic evidence that substantiated their statements about when the trees were planted and what size they were. I also note that statements made orally during the hearing contradicted some of the dates provided in the application and affidavits. However, if the trees were planted from 100 litre containers they are likely to have been in excess of 2.5m and they have been in the ground for between 16 and 21 years, depending on the range of dates suggested by the parties. It is accepted that the conifers replaced bamboo which was at least 4m tall and a lattice screen. Photographs in Mr Karavanas’ report show a tall lattice screen in situ in 1965 (s 14F(c)). I note Mr Staunton’s submission that the applicant has only recently, since 2014, raised concerns about view loss.

• The respondents value the trees for the privacy they afford their dwelling, in particular the pool, terrace off the living area and main bedroom balcony on the first floor. In the respondents’ affidavits, reference is made to a recent development consent for a further extension and opening up of the northern areas of the respondents’ dwelling. The respondents’ contend that the retention of the hedge for privacy is thus more critical. As previously stated, pruning the trees to provide the applicant with views to the west would expose these areas to overlooking from the unit above and, in Mr Staunton’s submissions, expose the visual bulk of the applicant’s property (s 14F(l)).

• While no arboricultural evidence was adduced, with the expertise I bring to the Court, pruning the trees to the height desired by the applicant, in my opinion would severely compromise the health, structure and appearance of the trees (s 14F(k)).

Orders

38. Having had the benefit of the site inspection and having considered the evidence, I am not satisfied that s 14E(2) is met for either element of the application. Therefore, as a consequence, the Orders of the Court are:

1. The application is dismissed.

____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 27 November 2015