Levett v Murray; Levett v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley

[2016] NSWLEC 1012

Land and Environment Court

New South Wales

Medium Neutral Citation:	Levett & anor v Murray & anor; Levett & anor v Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley [2016] NSWLEC 1012
Hearing dates:	13 January 2016
Date of orders:	15 January 2016
Decision date:	15 January 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	15/20918: The application is dismissed. 15/20919: The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] : Hedge; obstruction of sunlight; discretionary matters
Legislation Cited:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Wingecarribee Local Environmental Plan 2010
Cases Cited:	McDougall v Philip [2011] NSWLEC 1280
Category:	Principal judgment
Parties:	Kerry Donald & Penelope Clair Levett (Applicants – both matters) Robert John & Anne Elizabeth Murray (Respondents 20918 of 2015) Lyndall Jane Makin and Michelle Toni Le Mesurier as administrators for the Estate of Marcia Catherine Hinkley (Respondents 20919 of 2015)
Representation:	Applicants: Kerry and Penelope Levett (Litigants in person) Respondents 20918 of 2015: Anne Murray (Litigant in person) Respondents: 20919 of 2015: Richard Akero (Agent)
File Number(s):	20918 of 2015 & 20919 of 2015

Judgment

1. COMMISSIONER: The Levetts own a property in Burradoo. The adjoining properties to the north were once part of a larger property known as ‘Ostler’s Lodge’, listed as a local heritage item in Schedule 5 Wingecarribee Local Environmental Plan 2010 (WLEP). On the southern boundary of that property is a row of Cupressus torulosa (Bhutan Cypress) believed to have been planted in the 1980s. In 2001, ‘Ostler’s Lodge’ was subdivided. The owners of the resulting two properties are the respondents in these proceedings. The Murray property is the western portion of the subdivided lot; the Hinkley property, on which the listed cottage is located, is to the east.

2. The Levetts have applied under s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning by approximately 50% of their height – being to about 8-10m or preferably to gutter or roof height of 2-4m, and annual maintenance, of 23 Bhutan Cypress trees (12 on the Murray property, 11 on the Hinkley property) on the basis that the trees severely obstruct sunlight to windows of their dwelling. In addition, the Levetts seek the pruning and maintenance of a more recently planted extension of the row of Cypress and a Cherry Laurel hedge on the Murray property to a height of between 2-4m in order to prevent future loss of sunlight.

3. Neither respondent wishes to prune the trees. In particular, Mrs Murray values the trees for the privacy they afford her property, especially as the adjoining property may be redeveloped. She also raises a number of other matters that are discussed elsewhere in this judgment.

4. In applications under Part 2A of the Trees Act, there are a number of jurisdictional tests which must be sequentially satisfied in order to engage the Court’s powers under s 14D to make any orders for any intervention with any of the trees the subject of an application.

5. These tests relevant to these matters are summarised as:

• Are the trees in question trees to which Part 2A applies? That is, are the trees wholly or substantially on adjoining land? (s 4(3)) Are there two or more trees planted so as to form a hedge? (s 14A(1)(a)) If so are they at least 2.5m tall? (s 14A(1)(b))

• Are the trees concerned severely obstructing sunlight to windows of a dwelling situated on the applicant’s land? (s 14E(2)(a)(i)) In applications regarding obstruction of sunlight, this is usually considered to be mid-winter sunlight rather than the sunlight observed at the time of the hearing.

• If they are causing a severe obstruction, is the severity and nature of the obstruction 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? (s 14E(2)(b)) This involves consideration of a number of matters listed in s 14F.

6. The main trees in question are identified in the application claim form as Leyland Cypress but are correctly identified as Cupressus torulosa (Bhutan Cypress). They are wholly within the respondents’ land. There is no dispute that the trees are trees to which the Act and the Part applies. The trees are estimated to be about 16m tall. The recently planted conifers are more than 2.5m tall. The Cherry Laurel hedge is less than 2.5 m tall and therefore is beyond the scope of Part 2A. Therefore the main row of conifers and the more recently planted row of conifers meet the requirements of s 14A of the Trees Act.

7. The applicants have nominated 20 windows of their dwelling. During the hearing, the applicants limited the claim to the following windows:

W1      west facing living room window

W2-3      north facing living room windows

W4      north facing dining room window

W5      east facing dining room glass doors/window

W6      east facing kitchen window

W7      north facing family room window

W8-10      east facing family room windows

W11-12   skylights in family room

8. The Levetts purchased their property in 2001 and in 2002 added the family room on the eastern side (including the skylights); they estimate that the trees were then 6-8 m tall or chimney height. They state in their claim form that windows 1 and 2 used to receive winter sun in the early afternoon but now not until about 3.00pm; windows 2, 3, 4 and 7 used to receive winter sunlight from 9 am but now don’t receive any; and windows 11 and 12 once had winter sun from 10-11.00 am but now don’t receive any.

9. There is some dispute as to the height of the trees when the applicants purchased their property. During the hearing the height of the chimney was measured to be about 5.5m above ground level. Mrs Murray maintains that the trees must have been much taller than suggested by the Levetts as a photograph taken in February 2004 of the house she purchased in 2007 under construction shows the row of Cypress along the boundary extending well above the height of that building.

10. In support of their claim the Levetts provided shadow diagrams prepared in March 2004 which were prepared for a development application for a proposed ten dwelling aged care development on the site. The shadow diagrams include the shadows cast each hour from 9.00 am until 3.00 pm on 22 June by the existing dwelling, the proposed buildings and the Cypress trees. Although there are other trees on the Levett and Hinkley properties, the shadows cast by those trees are not shown.

11. The table below illustrates the likely impacts of the trees on the nominated windows at the time the Levetts purchased their property in 2001 and in 2002 when the extension was built. These estimates are based on the shadow diagrams and on the assumptions that the shadow diagrams accurately reflect the height and position of the trees and the trees have an average annual growth rate of 500mm per year [based on their current height and estimated age]. I am assuming that there trees were at least 8m tall.

12. This is necessary to establish as Part 2A does not create a vehicle for an applicant to obtain more sunlight or more of a view than was available to them when they purchased their property. This is discussed at length in McDougall v Philip [2011] NSWLEC 1280.

Table 1: Estimated blockage and available sunlight – 2001/2002

Window and aspect	Blocked by trees	Sunlight available 2001-2002	Property
W1 – west*	9.00-11.00 *11.00	11.00-3.00	Murray
W2 - north	9.00-11.30	11.30-3.00	Murray
W3 - north	9.00-12.30	12.30-3.00	Murray
W4 - north	9.00-2.30	2.30-3.00	Murray
W5 – east*	9.00-1.00 *1.00-3.00	-	Murray
W6 – east*	9.00-10.00 *12.00-3.00	11.00-12.00	Hinkley at 9.00; Murray at 10.00
W7 – north* (2002)	9.00-10.30 *12.00-3.00	10.30-12.00	Hinkley at 9.00; Murray at 10.00
W8 – east* (2002)	9.00-10.30 *1.00-3.00	10.30-1.00	Hinkley
W9 –east* (2002)	9.00-10.00 *12.00-3.00	10.00-12.00	Hinkley
W10 – east*	9.00-10.00 *12.00-3.00	10.00-12.00	Hinkley
W11/W12 Skylights*	9.00-10.00/10.30 *1.00-3.00	10.00/10.30-1.00	Hinkley 9.00; Murray 10.00

* self-shadowing from dwelling likely

13. Based on the shadow diagrams and the assumptions made in regards to the location of the trees, it would appear that there can be no change to the available sunlight to windows 1-5 as a consequence of the growth of the respondents’ trees because when the Levetts purchased their property the trees were already tall enough to block the sun at those locations. This is contrary to their claims in the application. Absent any recent shadow diagrams, and based on an estimate of their growth since 2004, Table 2 summarises the estimated likely current impact of the respondents’ trees on the remaining windows and skylights (skylights being a window for the purpose of the Act (s 3(1)).

Table 2: Summary of current impact due to the respondents’ trees

Window	Hours of sunlight lost	Property
W6 kitchen	1	Murray
W7 family	1.5	Murray
W8 family	<1.0 <1.5	Hinkley Murray
W9 family	<1.0 1.0	Hinkley Murray
W10 family	<1.0 1.0	Hinkley Murray
W11 northern skylight family	2.5	Murray
W12 southern skylight	1.0 2.0	Hinkley Murray

14. Notwithstanding the assumptions made in regards to the 2004 shadow diagrams, and absent more accurate and recent shadow diagrams, I am satisfied that many of the trees growing on each of the respondents’ properties are severely obstructing to windows W1 –W12. Therefore s 14E(2)(a)(i) is met for these windows and s 14E(2)(b) must be considered.

Matters for consideration

15. The balancing of interests inherent in s 14E(2)(b) requires consideration of any relevant matters listed in s 14F of the Trees Act. The following are relevant to these proceedings.

• The trees in question are growing close to the common boundary, about 1m from the dividing wire mesh fence. On its northern side, the applicants’ dwelling is set back 6.7m from the fence. There appears to be a discrepancy between the location of the trees shown on the shadow diagrams and the location as shown on the diagram in the application claim forms. The diagram in the claim forms shows the row of mature Cypress trees extending further to the west compared to the shadow diagrams. There is no scale on the diagram in the claim forms and the boundary between the respondents’ properties is in a different position relative to the applicants’ dwelling when compared to the shadow diagram (s 14F(a) – location of trees).

• The applicants’ dwelling was built in 1980. Photographs tendered by the Levetts appear to show that the trees had not been planted at that stage. However, the trees were well-established when the Levetts purchased the property in 2001 and when they built the extension in 2002. As stated above, it is thought the trees were planted in the 1980s, after 1981 as photographs of the common boundary taken in 1981 do not show the conifers. As considered in paragraph [14] of this judgment and based on the assumptions made in regards to the shadow diagrams the Levetts rely upon, the trees were tall enough in 2001/2002 to block sunlight to windows 1-5 and therefore any increase in height will have no additional impact on those windows (s 14F(b)(c) – pre-existence of trees or dwelling).

• The application claim form notes that a council tree preservation order does not apply to the trees. Pursuant to s 38(2) and s 39(4) of the Land and Environment Court Act 1979, I have had regard to the Wingecarribee Local Environmental Plan 2010 (WLEP). Clause 5.9 WLEP considers the preservation of trees or vegetation. Pruning to the extent sought by the applicants would require development consent or a permit; that is, the trees are protected by a tree preservation “order”. Section 5 Vegetation Management & Landscaping in the Bowral Town Plan Development Control Plan 2010 (BTPDCP) supports cl. 5.9 WLEP. The applicants may have assumed that Leyland Cypress are exempt however Section A6.1.3 BTPDCP provides a list of the declared noxious weeds and identified environmental weeds; neither Leyland Cypress or Bhutan Cypress are identified. Bhutan Cypress is suggested as an alternative exotic species for the replacement of undesirable species. I also note that further restrictions apply to the management of vegetation in the vicinity of heritage items. (s 14F(d) – other legislation)

• Although the heritage listing in WLEP for the Hinkley property only refers to the house and does not include the garden, as stated above, removal or interference with vegetation in the vicinity of a heritage item would require a greater level of assessment under cl. 5.1.7 BTP DCP. I note from the evidence provided by the Levetts and Mrs Murray that ‘Oster’s Lodge’ is associated with Riversdale House (now Chevalier College) another property listed in Schedule 5 WLEP (house and grounds) and which is opposite the Hinkley and Levett properties on Moss Vale Road. There are two other nearby heritage listed properties, Banyula garden in Riversdale Avenue and the adjoining “Werrington” house and garden. However, the trees in question are not listed as heritage items. (s 14F(f) – historical or special values)

• Mrs Murray contends that the trees are home to possums and other native fauna and provide shelter for small birds (s 14F(g) - biodiversity).

• The applicants accept that the trees contribute to the natural landscape and scenic value of the locality and make a “huge statement” and therefore are not seeking the removal of the trees. The row of trees is a prominent feature of the respondents’ properties and can be easily seen from Moss Vale Road. Coniferous hedges are characteristic landscape features of the Southern Highlands. Mrs Murray states in her evidence that she values the trees for the privacy they afford her property; in her view this will become more important if the proposed seniors living development goes ahead on the applicants’ property. She also notes the characteristic and attractive conical form of the trees visible above the canopies of other trees (s 14F(h)(i)((l) - amenity).

• Mrs Murray engaged an arborist, Mr Paul D’Hondt, to provide expert evidence at the hearing. Mr D’Hondt agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. In regards to the requested reduction of the trees by approximately 50% Mr D’Hondt opined that this would constitute lopping rather than pruning and the removal of so much foliage would probably reduce the trees’ ability to resist insects such as Cypress Bark Weevil, a type of borer commonly found in the Southern Highlands. He also considered that any new growth may be weakly attached and prone to failure. From a practical point of view, Mr D’Hondt stated that in order to carry out the work, and subsequent maintenance, the trees would need to be accessed from a cherry picker which would be very difficult given the restricted access (s 14F(k) – impact of pruning).

• In Table 1 I have indicated when self-shading from the applicants’ dwelling is likely. The scale of the shadow diagrams is 1:700 and some of the shadows cast by trees overlap shading from the eaves; however, notwithstanding these shortcomings, the applicants’ have been given the benefit of the doubt. The applicants’ garden is densely planted with a variety of trees and shrubs. Window 1 is likely to be shaded by a mature Arbutus unedo (Irish Strawberry Tree) growing in their front garden close to, and to the north-west of, that window. This is an evergreen small tree/ large shrub. The back garden is planted with many deciduous trees, some of which are taller than, and very close to, the east-facing windows of the family room. There is a large Camellia (evergreen) planted just to the east of W10. Although the majority of trees are deciduous, there is likely to be some impact on winter sun from them, although I accept the majority of the shading is due to the respondents’ trees. I also note that the 2004 shadow diagrams do not include any structure on either of the respondents’ properties or any other trees. During the hearing I observed two large and mature Cedrus deodara (Himalayan Cedar) trees growing in the south-western corner of the Hinkley property and close to the Cypress. These are evergreen trees and as tall as the Cypress. Also in that corner is a tall and mature Quercus palustris (Pin Oak) – whilst deciduous, this is a species which typically holds onto its leaves much longer than other deciduous trees (s 14F(m) – anything other than three trees which may obstruct sunlight).

• In July 2014 the applicants wrote to the Murrays and to Mrs Hinkley outlining their concerns about the trees and noting an opinion by a tree contractor that the trees would be suitable for reduction by 50% or even lower to 3-4.5m to enable future maintenance. They make further statements in regards to their interpretation of the hours of sunlight “recommended” by the Land and Environment Court [discussed below] and comments from previous tenants about the lack of winter sun as a consequence of the trees. The applicants include an estimated cost for the work and the need for access from the respondents’ properties; they invite a response. Mrs Hinkley passed away in May 2015 and her administrators only became aware of the dispute when the application was made. Mrs Murray states that the applicants had not approached her in the seven years since she purchased the property. She also states that a “mediator” engaged by the applicants was a construction project manager who was pleasant but offered no effective solution (s 14F(n) –actions of the parties).

• The trees in question are evergreen (s 14F(p)) and the hours of sunlight lost since the applicants purchased /extended their dwelling are given in Table 2 (s 14F(o)).

Consideration

16. The Levetts state that they researched the Land and Environment Court’s website which they say recommends 3-4 hours of sunlight. This is not correct. The Annotated Act ( at p 33) on the Court’s website makes the following guidance notes in regards to severe obstruction of sunlight. The cover page for the Annotated Act makes it clear that the notes provided by the Court do not form part of the Act and are provided to assist the understanding of the approach the Court may take.

In order to determine whether there is a severe obstruction of sunlight to a window of a dwelling, the Court has considered the usual minimum development standards for sunlight (solar amenity) required by most councils for new developments. This is typically at least 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9.00 am and 3.00 pm.

Shadow diagrams are very helpful in these matters however while the Court recommends them, it has not mandated their production. The onus is on the applicant to prove that the obstruction to a window is severe – Clancy v Bell [2011] NSWLEC 1017.

Care should be taken in preparing the diagram required in the application. In Ball v Bahramali [2010] NSWLEC 1334 the north point was found to be out by 40º. Accurate plans/ diagrams must be provided – Voeten & anor v Adams [2011] NSWLEC 1106.

As previously mentioned, Part 2A does not apply to solar panels or gardens.

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The most useful shadow diagrams are those professionally prepared on the basis of an accurate survey and which show the impacts of self-shading of a building/ impacts of other buildings, the shade cast by the trees at the time the application is made, and the shadows cast at the requested height which should be no lower than the height of the trees when an applicant purchased their property or built/ extended their dwelling. The preferred time of the year is usually June 21 however, that will depend on an applicant. I have outlined the several shortcomings of the shadow diagrams provided by the applicants.

17. I have already determined that the mature Cupressus torulosa are severely obstructing sunlight by removing all winter sunlight not otherwise affected by the self-shading of the applicants’ dwelling; therefore what remains to be determined is the balancing of the interests and the matters considered in [15] of this judgment.

18. On the evidence before me and consistent with the reasons given in McDougall v Philip [2011] NSWLEC 1280, I am dismissing the application in regards to windows W1-5 as these windows are likely to have been obstructed when the Levetts purchased or extended their dwelling. The judgment focusses on the remaining windows pressed by the Levetts.

19. Whilst Part 2A has the words ‘high hedges’ in its title, all the relevant sections refer to ‘trees’ rather than the collective ‘hedge’. That is, it is necessary to consider which particular trees are severely obstructing the sunlight or view; orders have been made in the circumstances of some other cases for reduction of removal of selected trees.

20. There is some difficulty in identifying which trees on each property are causing the impact on each of the windows. The 2004 shadow diagrams do not identify individual trees but simply note ‘row of pines’. The diagram included in the application claim forms not only extends the row of trees but does not show the boundary between the respondents’ properties in the same position relative to the applicants’ dwelling as the 2004 shadow diagram. Therefore the following is a best estimate of which particular trees have caused the additional loss of winter sunlight. I have used the boundary line from the shadow diagram and the tree numbering from the diagram in the claim forms.

The Hinkley Trees

22. In this case, at 9.00 am the Hinkley trees were tall enough to shade the Levett’s dwelling when they built the family room in 2002. The additional loss of sunlight from 10.00 am (less than 1 hour) to windows W8-10 and W12 (family room) is likely to be from trees 13-17 on the Hinkley property – being the trees closest to the dividing fence with the Murray property. However, the two Himalayan Cedars and the Pin Oak, noted above, are located near these trees and so any reduction in the height of the Cypress may have a minimal impact on the availability of sunlight. The trees on the Hinkley property are also the most visible from Moss Vale Road and are a prominent feature of the landscape. There is no justification in the circumstances for requiring the reduction of the entire row of trees on the Hinkley property as the growth of the eastern most trees is unlikely to have created any additional loss of sunlight to the Levett’s dwelling. Whilst the garden is not part of the heritage listing of the property, it nonetheless is part of the setting.

23. Given the limited impact on the applicants’ dwelling and for the reasons given above, no orders will be made for any intervention with the trees on the Hinkley property. This does not prevent any future owner of that property from applying to Wingecarribee Council for a permit to prune or remove the trees.

The Murray trees

24. Dealing first with the more recently planted row of conifers to the west of the mature Bhutan Cypress trees, while s 14B enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of sunlight or a view, the Act requires that there must be a severe obstruction as a consequence of those trees before any orders can be contemplated. These trees do not severely obstruct any sunlight to any of the applicants’ windows and therefore the application in regards to these trees is dismissed.

25. The main impact of the Murray trees on W6, W7, W8 and W11 occurs from about 10.00 am until about 12.00 pm; on window W10 for about an hour from sometime before 11.00 until this window is self-shaded; and on windows W9 and W12 from 11.00 am until 12.00 pm. The impact at 10.00 am is probably due to trees 11 and 12, the eastern most of the row of trees on the Murray property and close to the boundary fence. The impact at 11.00 is probably from trees 8-10; at 12.00 probably from trees 3-8. By 1.00pm the windows are probably shaded by the applicants’ dwelling.

26. Apart from the visual prominence of the trees, I am persuaded by Mr D’Hondt’s evidence, and on the basis of the arboricultural expertise I bring to the Court, that the extent of the pruning requested by the applicants will have a debilitating impact on the health of the trees. From a practical point of view, cutting the trees to 8m will be difficult in the first instance and create on-going problems for maintenance. While reducing the trees to about 4m may be easier for longer term maintenance that extent of reduction would have a severe impact on the health and visual amenity of the trees. The other alternative is removal of the trees however, given the established benefit they provide in terms of privacy and visual amenity, this is extreme and in my view unwarranted in the circumstances. I am also reluctant to order extreme pruning (which does amount to lopping and which is determined by AS4373: 2007 Pruning of Amenity Trees to be an unacceptable practice) of a prominent row of trees in the absence of any professionally produced shadow diagrams which would demonstrate the benefit to be gained.

27. I am also persuaded by Mrs Murray’s contention that the applicants only raised this with her in 2014, some seven years after her purchase of the property. The letter sent to the respondents also included letters written by two previous tenants. The letters from the tenants were dated 21 July 2014 and 31 July 2014 and not contemporaneous with their time of occupancy. Given that the applicants have expressed concerns about the growth rate of the trees during their ownership of them, had earlier approaches have been made when the trees were smaller the impact on the trees may have been tolerable and manageable. I note that the applicants approached the previous owner/ builder of the Murray property to cut the trees when the lot was vacant however this was refused on the advice of an arborist.

28. This has been a difficult decision and a very fine balance, however in considering the evidence and the relevant matters in s 14F of the Act, I have determined that the applicants’ interests in having the obstruction of sunlight caused by Mrs Murray’s trees do not outweigh the other matters that suggest the undesirability of interfering with the trees. Therefore the orders sought by the applicants will not be made.

Orders – matter 20918 of 2015

1. The application is dismissed.

Orders – matter 20919 of 2015

1. The application is dismissed.

_____________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 15 January 2016