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Rees & Anor v Chen [2017] NSWLEC 1502

Background

On 12 September 2017, judgment was delivered in Rees & Anor v Chen [2017] NSWLEC 1502 dismissing an application brought by Rees pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’) against the adjoining property owner, Chen. The applicant sought to have the hedges planted in the adjoining property to be limited to a certain height as it was alleged that the hedges have severely obstructed Rees’ view of the Lane Cover River.

Judgment

  • The Court found that the jurisdictional tests in s 14E(2) are not met in regards to the obstruction of sunlight because i) the obstruction of sunlight was caused by a hedge that pre-existed the applicant’s purchase of the property and ii) the sunlight obstructed was not direct sunlight.
  • The Court also found that the jurisdictional tests are not met in regards to the obstruction of views because i) the view of water was across a side boundary and relatively small portion of the overall view available; ii) the loss of views from other rooms was not severe and iii) the obstruction of views from one room pre-existed the applicant’s purchase of the property.

Implications for Council

This case provides a good summary of the jurisdictional tests and planning principles in which the Court will take into consideration when dealing with tree disputes relating to obstruction of views and sunlight.

A. Jurisdictional tests in Part 2A of the Trees Act

 

  1. Section 14A(1) – whether the trees are trees to which Part 2A applies.
  2. Section 14E(1)(a) – whether the court is satisfied that the applicant has made a reasonable effort to reach agreement with the neighbour.
  3. Section 14E(2) – whether the trees concerned are severely obstructing sunlight to a window of a dwelling or obstructing a view from the dwelling situated on the applicant’s land and 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.
  4. 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 ( see Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122).
  5. 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 that the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
  6. The word ‘sunlight’ in Part 2A is to be taken as meaning ‘direct sunlight’ rather than simply ‘daylight’ or ambient light (see Drewett v Best [2010] NSWLEC 1305 at [17]).
  7. Part 2A of the Trees Act did not establish the right to a view or sunlight not available to an applicant when they purchased the property (see McDougall v Phillip [2011] NSWLEC 1280 at [23])

B. Planning Principles in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140

 

  1. 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.
  2. The location from which the view is seen – across front/rear or side boundaries and from sitting or standing positions. Sitting views across side boundaries are more difficult to protect.
  3. 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.