Dimont v Bellamy [2017] NSWLEC 1506

Land and Environment Court New South Wales

Medium Neutral Citation: Dimont v Bellamy [2017] NSWLEC 1506 Hearing dates: 13 September 2017 Date of orders: 13 September 2017 Decision date: 13 September 2017 Jurisdiction: Class 1 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Hedge; sunlight and views; obstruction not severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Category: Principal judgment Parties: Carolina Dimont (Applicant) Betty Bellamy (Respondent) Representation: Applicant: Ms C Dimont (Litigant in person) Respondent: Mr P Bellamy (Agent) File Number(s): 2017/153523

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant has applied under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the pruning to 2.5m of three Norfolk Island Pines growing on the respondent's adjoining property in Tweed Heads. 2. The orders are sought on the basis that the trees are severely obstructing sunlight to windows of her dwelling and views of the nearby canal from her dwelling. 3. The respondent opposes the orders as she submits that the trees are healthy, well maintained and do not severely obstruct either sunlight or views. 4. 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. 5. The first test, in s 14A(1) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge, and if so, do they rise to a height of at least 2.5m above ground level? 6. The applicant elected the height of 2.5m because it is specified in s 14A(1)(b) of the Trees Act. I note that it is a common misconception that 2.5m is the prescribed 'legal' limit to which hedges must be maintained. This is not the case. The Trees Act simply specifies 2.5m as a height the trees in a 'hedge' must have reached in order to engage the Court's jurisdiction. That is, if the trees forming the hedge are less than 2.5m, they are not trees to which Part 2A applies and thus would fall beyond the Court's jurisdiction. 7. According to the respondent, the trees were probably planted in about 1980 and were well established when both parties purchased their properties. While the intent of the planter cannot be ascertained, the trees are linearly aligned and equally spaced at 3m centres. They are greater than 2.5m tall. I am satisfied that the trees could be reasonably considered to be trees to which Part 2A applies. 8. In accordance with s 14E(1)(a), I am also satisfied that a reasonable effort to reach agreement has been made. 9. 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. 1. 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. 2. 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. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. 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. 3. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.

Sunlight 1. The applicant contends that the trees block sunlight from about 1.30 pm to two windows of her two storey dwelling. Window 1 (W1) comprises the double glass sliding doors to the ground floor living area. W2 comprises the double glass sliding doors to the first floor main bedroom immediately above W1. Both sets of doors lead onto a terrace. 2. During the on-site hearing, the location of north was confirmed with a compass. The windows face north-northwest. The trees are to the northwest of the windows. 3. The applicant has not provided any evidence such as shadow diagrams or time and date stamped photographs that would confirm the alleged severe obstruction of sunlight to the nominated windows. The only photographs in the application claim form relating to shading are photographs of shadows cast by the trees across the swimming pool, but not the dwelling. 4. Part 2A does not apply to obstruction of sunlight to anything other than windows of a dwelling on an applicant's land. 5. Timed and dated photographs in the respondent's evidence (Exhibit 1), taken on 29 May and 4 July 2017 show dappled shading from the trees on the nominated windows in the mid to late afternoon. Otherwise, the photographs show the windows in sunlight or shaded by the 3m wide awnings above each of the windows. Extrapolating the timing of shading shown in the photographs, combined with knowledge of how the sun moves in the sky at different times of the year, it would seem that some shading may occur from about 2.30 pm in winter. 6. 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 planning controls for sunlight (solar amenity) required by most councils. This is usually about three hours of sunlight to living room windows between the hours of 9.00am and 3.00pm on the winter solstice (21 June). 7. On the evidence before me, I am not satisfied that the respondent's trees are severely obstructing sunlight to either of the applicant's windows. As s 14E(2)(a)(i) is not met, the Court has no jurisdiction to further consider the issue; therefore this element of the application is dismissed

Views 1. The parties' properties back onto one of several canals constructed off a tributary of the Tweed River. The applicant maintains that the trees obstruct views towards the northwest of the canal and boat activity on it. 2. The applicant's dwelling was built in 1987 and she purchased the property in 1997. Photographs included in the application claim form show the trees to be well established in 1997. At that time, the view to the northwest of the canal from W1 was probably obstructed by palms growing on the applicant's property (the palms have since been removed), and from W2 was partially obstructed by the trees. 3. In determining severity of impact, the Court often has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view – whether the view is of iconic structures, water, land/water interface, or district views. Water views and views of the land/water interface are generally valued more highly than views of land. Whole views are valued more highly than partial views. The second step considers the location from which the view is seen – across front/rear or side boundaries and from sitting or standing positions, including views available from the whole of the property. Sitting views across side boundaries are noted as being more difficult to protect. The third step considers the use of the rooms from which the views may be affected – views from living areas being rated more highly than views from bedrooms/ service areas. The Planning Principle includes a scale of impact ranging from negligible, to minor, moderate, severe to devastating. 4. The Court has also considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 1. In this matter, and with the benefit of a site inspection, the view is of a water body that terminates to the northeast of the applicant's property. The view in contention is across a side boundary, the view of the canal from the applicant's rear boundary is uninterrupted. Sitting views from W1, ground floor, are likely to be obstructed by a Murraya hedge growing on the applicant's property beneath the canopy of the Norfolk Island Pines. Standing and sitting views from upstairs, outside W2, as well as standing views from W1, are filtered as the canal can be seen beneath and between the trees. 2. While I accept that the trees have grown in height and width since the applicant purchased her property and less of the canal can be seen in that north-westerly direction, the trees are not severely obstructing the views available from the applicant's dwelling. As s 14E(2)(ii) is not met, this element of the application is also dismissed.

Other 1. In her application claim form, the applicant also raises concerns about the possible instability of the trees as well as leaf drop and thus potential damage or injury. These are not matters to which Part 2A applies but would be considered if the applicant made an application under Part 2 of the Trees Act. The Land and Environment Court's website provides considerable information about the Trees Act and includes links to all judgments made since the commencement of the Act. 2. However, the application before the Court is pursuant to Part 2A. Given the findings of no severe obstruction of sunlight or views as a consequence of the respondent's trees, the only Court order that can be made is: 1. The application is dismissed. ___________________ Judy Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2017