Where a hedge is blocking sunlight or views the Court can make orders to:
- Prune or remove the hedge;
- Maintain the hedge at a specific height or width; and
- Order to remove the trees in the hedge to be removed and replaced with a different species.
The test applied by the Court is whether 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.
This raises the difficult question of what constitutes a "severe obstruction". Unfortunately, there is not a single definition of this term. Whether an obstruction of sunlight or views is severe is ultimately a question of fact for a Commissioner of the Court to determine.
Past cases provide a general outline of what is considered severe. An obstruction of views is generally not severe if there are filtered views through the trees or the obstruction is minor in the context of the matter. A hedge needs to be both high and similar to a wall in its visual effect.
The court will assess the nature of the view affected. For example, water views are generally valued more highly than land views and whole views are valued more highly than partial views. The court will also consider if the view is from a sitting or standing position. It is generally unreasonable to expect unobstructed views from one seat or a single fixed position from a dwelling. Finally, the court will also consider the vantage point from where the view is sought, such as in living areas or kitchens. These areas are valued more highly than areas such as bedrooms.
Similar considerations apply in the determination of a severe obstruction of sunlight. To demonstrate that an obstruction of sunlight is severe you will often need to provide evidence such as shadow diagrams that indicate the impact of the trees. We recommend engaging a qualified consultant to provide a report on this and other issues including dampness at the property.
Who pays costs?
Usually, parties to proceedings will have to pay their own costs. The court has power to award costs if it finds it is reasonable to do so, for example if a party has unreasonably delayed the proceedings.
There are limits on the Court's power to make orders and you may still need consent
The Court can make orders regardless of whether consent is required under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. The Court cannot make those orders if the work to be carried out or activity to be undertaken is prohibited under any other Act.
If not prohibited, but consent is still required under any other Act, for example the Biodiversity Conservation Act 2016, you still have to apply for consent from the relevant authority for an order to carry out work or engage in any activity relating to the tree. The Court can make an order compelling a party to make that application.
Discuss these issues with your neighbour first. If this is unsuccessful or if you just want advice on your rights, contact Associate Mark Evans to discuss and let us provide a solution for you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.