Tranter v Dudeney

[2023] NSWLEC 1024

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tranter v Dudeney [2023] NSWLEC 1024

Hearing dates:

16 January 2023

Date of orders:

23 January 2023

Decision date:

23 January 2023

Jurisdiction:

Class 2

Before:

Chilcott C

Decision:

The Court orders that:

(1) the application is refused;

(2) the exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of sunlight – whether the obstruction is to a window – if no window Court has no jurisdiction

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E

Category:

Principal judgment

Parties:

William Tranter (First Applicant)
Kay Tranter (Second Applicant)
Jo-Ann Dudeney (Respondent)

Representation:

Counsel:
K Tranter (Self-represented) (Applicant)
Jo-Ann Dudeney (Self-represented) (Respondent)

File Number(s):

2022/341991

Publication restriction:

Nil

Judgment

Background to the application

1. William and Kay Tranter (the Applicants) have applied to the Court pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders in relation to three matters concerning hedges on a neighbouring property to the east of the Applicants’ property at 247 Kirkwood Road West, Tweed Heads South (the Subject Site).

2. The hedges that are the subject to the application are located on the adjoining property at 245 Kirkwood Road West, Tweed Heads (the adjoining property) belonging to Jo-Ann Dudeney (the Respondent).

3. Both the Applicant and Respondent were self-represented at the hearing which was conducted on site in the front yard of the adjoining property.

4. The Applicants had sought that the Court make orders to require that vegetation on the adjoining property be pruned and maintained so as to restore views and sunlight to various parts of their dwelling, and specifically in relation to following three circumstances:

1. in relation to views from an east facing window, referred to in the proceedings as window W1, located in the kitchen of a granny flat at the front of the Subject Site;

2. in relation to views from an east facing window, referred to in the proceedings as window W2, located in the kitchen of the principal dwelling on the Subject Site; and

3. in relation to the obstruction of sunlight to a rear, north-facing, patio through which the Applicants gain access to the back garden area of the Subject Site.

5. I note that pursuant to the provisions of s 14E(1) of the Trees Act, the Applicant must make reasonable effort to reach agreement with the tree owners, and in relation to this:

1. the Applicants had provided documentation to support their submission that they had made a reasonable effort to reach agreement with the Respondent to resolve matters in dispute between them;

2. the Applicants had also sought resolution of the matters in dispute through mediation via the Community Justice Centre (CJC), and:

1. documentation supporting this fact was also provided by the Applicants; and

2. the Respondent had confirmed in a written submission that she had declined to attend the CJC mediation as she did not feel the matters could be resolved via mediation;

3. on the basis of the documentation provided by the Applicants, and consistent with the Respondent’s submission, I am satisfied that the Applicants have made reasonable efforts to resolve matters in dispute with the Respondent.

6. Prior to the commencement of the on-site hearing, the Court undertook an inspection of the vegetation comprising the hedges that the Applicants said was causing the view loss and obstruction of sunlight issues and that were the subject of the application.

7. During the site view, and as later confirmed at the on-site hearing, the Applicants stated that the vegetation observed through windows W1 and W2 was not, in fact, such as to create severe view loss, and on that basis agreed that the matters concerning view loss from windows W1 and W2 (see above (at [4(1)] and [4(2)]) were not be pressed.

8. Consequentially, the only matter remaining for resolution in the concerning the application is the obstruction of sunlight to the rear patio area (see above at [4(3)]).

Framework for this decision

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

1. 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). This requirement was confirmed as satisfied during the site view, which identified that the obstruction of sunlight in contention was caused by a high clumping bamboo hedge, and this fact was not disputed between the Parties;

2. pursuant to the provisions of s 14D(1) of the Trees Act, the Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the Applicant’s land if the obstruction occurs as a consequence of trees that are the subject of the application concerned, and in relation to this:

1. the obstruction of sunlight concerning which the Applicants seek orders relates to a rear patio area of the Applicants’ principal dwelling;

2. the Applicants said that the amenity of the patio, particularly in winter, was diminished by the obstruction of sunlight arising from the respondent’s clumping bamboo hedge, noting that the loss of sunlight reduced the time available, particularly in winter mornings, for the patio tiles to be warmed by the sun;

3. as confirmed during the site inspection, and in photos provided by the Applicants, the rear patio area:

1. is open at its rear extent, and

2. is not a part of the dwelling with windows;

4. as the provisions of s 14D(1) of the Trees Act require that the obstruction of sunlight should be to a window of the Applicant’s dwelling, and as there is no window affected by the obstruction of sunlight from which the Applicants seek relief, the requirements of s 14D(1) of the Trees Act are not satisfied.

10. As a consequence of the above facts (at [9(2)]), the Court has no jurisdiction to make the orders sought by the Applicant, the application cannot be approved, and so it should be refused.

11. Notwithstanding my conclusion above (at [10]), I note that a further requirement of the Trees Act under s 14D(1) is that the obstruction of sunlight should be ‘severe’, and I note that:

1. while the Applicants did provide photos that they had taken in support of their application, they had not provided any independent evidence, such as professionally prepared shadow diagrams, to confirm the extent of sunlight obstruction;

2. the Applicants’ evidence was that the obstruction of sunlight extended during the morning in winter until approximately 10:30am;

3. the rear of the Applicant’s dwelling, including the rear patio, was not subject to sunlight obstruction from the Respondent’s clumping bamboo hedge during the balance of the morning and through the afternoon;

4. on the basis of the above points, and my inspection of the Subject Site, I am not satisfied that the obstruction of sunlight arsing from the clumping bamboo hedge on the adjoining property would constitute ‘severe’ obstruction.

Orders

12. The Court orders that:

1. the application is refused;

2. the exhibits are retained.

……………………………….

M Chilcott

Commissioner of the Court

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Decision last updated: 23 January 2023