Lynch v Singleton
[2018] NSWLEC 1008
•03 January 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Lynch v Singleton [2018] NSWLEC 1008 Hearing dates: 3 January 2018 Date of orders: 03 January 2018 Decision date: 03 January 2018 Jurisdiction: Class 2 Before: Brown C and Douglas AC Decision: 1. The appeal is upheld.
2. The respondent is to prune the hedge to a height of 3.5m above ground level between 1 March and 15 March each year.Catchwords: TREES [NEIGHBOURS] : hedge; obstruction of sunlight; loss of views Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Regulation 2007Cases Cited: Barker v Kyriakides[2007] NSWLEC 29 Category: Principal judgment Parties: Mr Terrance Lynch (Applicant)
Mr Justin Singleton (Respondent)Representation: Counsel:
Mr T Lynch (Litigant in Person) (Applicant)
Mr G Long, solicitor, Long Legal Pty Ltd (Respondent)
File Number(s): 2017/342554 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONERS: The applicant and his wife have owned the dwelling at 18 Pulver Street Hamilton South since 2008. The respondents’ property at 248 Lawson Street shares a partial common boundary with 18 Pulver Street. The respondents have planted a row of seven lilli pilli (Syzygium luehmannii) (the trees) along that part of the shared common boundary. The height of the trees is currently around 5.5m to 6m although the height was around 2m in 2008. The trees exhibit fair to good health and vitality. A solid masonry wall of some 2.3m in height is located on the common boundary adjoining the trees.
The applicant’s case
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The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning and the maintenance of the trees to a height of 2.5m above natural ground level, firstly on the basis that the trees severely obstruct sunlight to two windows on the northern side of his dwelling (Windows W1 and W2) and secondly, that the trees obstruct views from the rear windows of their dwelling.
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The applicant also seeks orders under Part 2 of the Trees Act that where the trees overhang the guttering that the pruning and the maintenance of the trees be at a height no greater than the height of the gutter of the applicants dwelling.
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The applicant maintains that the height and length of the trees obstructs all direct sunlight to the kitchen and dining area during daylight hours through Window W1 and from early morning to mid-morning to the family room through Window W2. The lack of sunlight affects the enjoyment of the dwelling, particularly given that these rooms are used regularly by the applicants. The applicant provided a number of photographs from 2008 (around the time they purchased the property) and in 2016 where the increase in the height of the trees could be observed as well as the shadowing on the courtyard and on the interior of the kitchen and dining room of the dwelling. No professionally produced shadow diagrams were provided.
The respondent’s case
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The respondents do not wish to remove the trees as they value them for the privacy they afford their property, the landscape buffer they create and for their ecological value.
Jurisdictional requirements
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In applications under Part 2 relating to trees that cause or are likely to cause damage or injury, cl 7 provides that:
An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
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We are not satisfied that leaves being deposited in the gutter of the applicant’s dwelling falls within the application of Part 2 of the Trees Act as this event would not constitute “damage to property on the land”. It has been found that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. (see Barker v Kyriakides[2007] NSWLEC 29). In our opinion, the principles established in Barker v Kyriakides are equally valid and applicable in this case.
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In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court’s powers to make orders are engaged. We are satisfied that:
the Tree Act applies to the land (s4(1)),
there are two or more trees planted so as to form a hedge (s 14A(1)(a),
the trees are at least 2.5m in height (s 14A(1)(b),
there is a severe obstruction of sunlight to a window of a dwelling from the trees on the adjoining property (s 14D(1)(a)),
there is a loss of any view from the applicants dwelling (s 14D(1)(b)), and
there has been reasonable efforts by the applicant to reach agreement (s 14E(1)).
Findings
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To understand the concerns of the applicants it is necessary to provide a description of the relationship between the two properties in question. The applicant’s dwelling occupies a relatively large area on the site. Along the common boundary, the family room has a zero northern setback with the respondent’s property. Window W2 is perpendicular to the boundary and faces directly east onto a 2m wide courtyard. This courtyard runs along the northern boundary and also provides access through sliding doors (Window W1) to the kitchen and dining room. The courtyard then extends in width and returns along the eastern boundary.
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With the benefit of the site inspection, including both properties in question, were are satisfied that pruning of the trees, to a height of 3.5m above ground level can be supported for a number of reasons. First, we accept that the kitchen and dining room of the applicants dwelling are likely to be used on a much more regular basis for daily activities, as opposed to the formal lounge area at the south-eastern area of the dwelling. Consequently, and also given the northern orientation of the dining and kitchen area; it is not unreasonable that this area should receive sunlight during mid-winter, if possible. Similarly, sunlight to the family room should be provided , if possible, and if only in the morning, given the orientation of Window W2.
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Second, in balancing the need to provide sunlight to the applicant’s property and also to minimise stress on the trees associated with annual pruning, we are satisfied that the pruning to a height of 3.5m provides an appropriate balance.
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Third, and while we did not have the benefit of any professionally produced shadow diagrams, we are satisfied that reasonably accurate assumptions can be made on the basis of the 33 deg inclination of the sun at midday in mid-winter that results in a shadow of approximately 1.5 times the height of any structure that is creating the shadow. We note that the existing 2.3m solid masonry wall set back some 2m from the dwelling would likely cast a shadow over the adjoining courtyard and into the dining area of the dwelling in any event and if the trees did not exist. The concerns raised over the accuracy of establishing north and the consequent conclusions on overshadowing are not supported given the understanding of the likely overshadowing impacts caused by the trees..
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Fourth, we do not accept that the respondents provided any valid reasons to support the retention of the trees at their current height. The need for the trees to provide privacy from the first floor bedroom of the applicants dwelling is unfounded because of the small windows and high sills, undoubtedly required by the council in their assessment of the dwelling when submitted for approval, which were observed on the site inspection. Any concerns over the loss of a landscape buffer and their ecological value are insufficient reasons to retain the trees at their current height.
Orders
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Having considered the relevant matters in s 14F of the Trees Act, we find that the following orders are necessary to prevent the severe obstruction of sunlight Windows W1 and W2 of the applicants dwelling. Any orders sought in relation to loss of view are unnecessary given the findings on obstruction of sunlight.
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The orders of the Court are:
1. The appeal is upheld.
2. The respondent is to prune the hedge to a height of 3.5m above ground level between 1 March and 15 March each year.
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G Brown
Commissioner of the Court
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J Douglas
Acting Commissioner of the Court
Decision last updated: 11 January 2018