Taylor v Dixon

[2022] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:

Taylor v Dixon [2022] NSWLEC 1083

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether trees are planted so as to form a hedge – whether the obstruction is severe – whether the applicant has lost access to sunlight – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

McDougall v Philip [2011] NSWLEC 1280

Category:

Principal judgment

Parties:

Clare Taylor (Applicant)
Rod Dixon (First Respondent)
Sharne Aldridge (Second Respondent)

Representation:

Counsel:
C Taylor (Litigant in Person) (Applicant)
B Richardson (Agent) (First and Second Respondents)

File Number(s):

2021/309627

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

1. Clare Taylor (‘the applicant’) bought her Mosman property in December 2020. In November 2021 Ms Taylor applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for two cypress trees on neighbouring land belonging to Rod Dixon and Sharne Aldridge (‘the respondents’) to be pruned or removed due to the sunlight obstruction caused by those trees.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F must be considered.

3. If all of these tests are met, the Court can make orders at s 14D to remedy, restrain or prevent a severe obstruction of, in this case, sunlight to a window of the applicant’s dwelling.

4. The hearing took place via MS Teams. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view. Ms Taylor was self-represented; Mr Richardson, as agent, represented the respondents.

The applicant made reasonable effort

5. Ms Taylor wrote to Ms Aldridge and Mr Dixon in September 2021 explaining the problem she had with their trees obstructing sunlight and looking to find a solution. Their response made it clear that they were unwilling to take any action. It was clear to Ms Taylor that further discussions would be pointless, so she applied to the Court. I find that her efforts to reach agreement with the respondents were reasonable.

The trees are planted so as to form a hedge

6. Two Leighton Green Cypress trees are planted next to each other on the respondents’ side of the common boundary to form a dense screen above the boundary fence. They are planted so as to form a hedge. Ms Taylor described them as approximately 6 metres tall. Part 2A of the Trees Act therefore applies to these trees (s 14A(1)).

The trees severely obstruct sunlight

7. Ms Taylor provided photographs showing the proximity of the trees to her dining room window and kitchen window. The trees’ foliage grows to the boundary, above the fence, forming a dense screen taller than the tops of these windows. The boundary is only 600 mm from these windows. The trees are directly east of the windows, so they obstruct all direct sunlight to these windows throughout most of the morning – for a brief period before noon, or just before the sun reaches its highest point in the sky, sunlight from above might pass through the narrow gap between the dwelling and the trees to reach these windows. The respondents referred to planning guidelines for reasonable sunlight access and caselaw regarding east-facing windows and so on, submitting that the obstruction is not severe. However, I find that consideration of the issues they raised belongs more fittingly under the matters to be considered at s 14F of the Trees Act, which in turn inform the assessment at s 14E(2)(b) as to the weighing of each party’s interests and the pros and cons of interfering with the hedge. The test at s 14E(2)(a)(i) applies only to the degree of sunlight obstruction to a window, caused by the trees, and whether or not it is severe. Based on my description above, I find the two trees severely obstruct sunlight to Ms Taylor’s kitchen and dining room windows.

Relevant matters

8. The final test, at s 14E(2)(b) of the Trees Act, requires consideration of the matters at s 14F.

When the trees grew to severely obstruct sunlight

9. At s 14F of the Trees Act, the Court must consider, among other matters:

(a) …

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

…

10. The trees were already at or around their current height when Ms Taylor purchased her property. She submitted that the property had been rented out for five years before then. When she purchased, she thought her new neighbours would be willing to assist with the issue when they saw it from her property. They were not.

11. In McDougall v Philip [2011] NSWLEC 1280 (‘McDougall’), Fakes C wrote at [22]–[24]:

“22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force - see That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling.

b) That this jurisdiction be strictly limited, with applications restricted to hedges which:

are both high and give the effect of a solid barrier, and

are causing severe impact for a dwelling, and

have caused the impact to the applicant (not to the previous occupant), and

are located between neighbours on adjoining land.

c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.

e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title.

f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction.

23 The discussion relating to Recommendation 9 [page 35] states in part that:

The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.

24 The amended Act incorporates all of the recommendations made in the review.”

12. The Court has consistently taken this approach since McDougall. Although I find Ms Taylor’s application to be reasonable, and I accept that the trees severely obstruct sunlight to her windows and affect her enjoyment of her property, I consider the intention of the Trees Act as described above prevents me from making orders in this matter. Indeed, the hedge outside her windows appears to be exactly the type of hedge in mind when Pt 2A of the Trees Act was enacted. Unfortunately for Ms Taylor, she has come to this situation as it stands and now relies on some reasonable cooperation from her neighbours, which I hope she finds.

13. The respondents gave extensive submissions regarding their privacy and other matters. As I have found that I cannot make orders for the reasons given above, and in the interest of giving a timely decision, I have not given those matters consideration here.

Orders

14. As a result of the foregoing, the Court orders that:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 16 February 2022