Land and Environment Court New South Wales

• Medium Neutral Citation: MacCulloch & anor v Hutchinson & anor [2014] NSWLEC 1022
• Hearing dates: 5 December 2013
• Decision date: 13 February 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld in part.

(2) Beginning 2014, each and every year during the month of April the respondents are to organise and pay for a suitably qualified horticulturist or arborist, with appropriate insurance, to prune the row of 14 Leyland Cypress trees as follows:

i. T2 to T5 to an average height of 3 metres, measured at the centre of this section;

ii. T6 to T10 to an average height of 3 metres, measured at the centre of this section;

iii. T11 to T15 to an average height of 3.5 metres, measured at the centre of this section; and

iv. any branches and foliage overhanging the common boundary.

(3) The respondents are to give the applicants two weeks' notice of the works in (2).

(4) The applicants are to allow all access necessary for the works in (2) during reasonable hours of the day.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of sunlight; pruning ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: APPLICANTS; Ian MacCulloch and Rhoda MacCulloch; RESPONDENTS; Frank Hutchinson (First Respondent); Moira Hutchinson (Second Respondent)
• Representation: RESPONDENTS; Martin Hadley; APPLICANTS; John Comino; Comino Prassas Solicitors; RESPONDENTS; Mark O'Brien; Harrington, Maguire & O'Brien
• File Number(s): 20674 of 2013

Judgment

Background

1 A hedge comprising 14 Leyland Cypress trees (xCupressocyparis leylandii) grows just inside the boundary of a property in Normanhurst. The Hutchinsons ('the respondents') planted the trees for privacy some 14 years ago, around the time that the applicants' dwelling was completed. The trees grew to a not insignificant size. The MacCullochs ('the applicants') live next door to the Hutchinsons. Their property is the result of a two-lot subdivision. Their dwelling is in the rear section of the original property, adjacent to neighbouring rear gardens rather than dwellings, naturally giving rise to overlooking issues to those neighbouring gardens. The MacCullochs' dwelling is double-storey: bedrooms are on the upper level; living areas are on the ground level. The Hutchinsons' hedge is alongside the MacCullochs' dwelling. As the trees grew, the MacCullochs became concerned that their access to light was becoming restricted. The neighbours have communicated about the hedge and its potential issues but have been unable to reach agreement on a suitable compromise or outcome. The MacCullochs have applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the respondents to prune and maintain the trees at specified heights: T2-T11 at 3 metres above ground level; and T12-T15 at 3.5 metres above ground level. They propose that the top of the hedge should be pruned to follow the contour of the ground, so that these heights represent the height to the top of the foliage at any point in the hedge. They also want the respondents to prune any branches overhanging the common boundary. Their application is based solely on obstruction of sunlight - they do not press any part of their application in relation to obstruction of views.

2 The Hutchinsons say they are willing to prune the hedge. In fact, they pruned the trees recently, eight days prior to this hearing, and before that in July 2012. However they are not willing to prune to the extent requested by the MacCullochs. They also wish to maintain the existing appearance of the hedge with a horizontal top, in three sections.

3 The applicants filed additional material after the date required by Direction 6 from the Directions Hearing of 15 October 2013. It was agreed that only the information regarding the frequency of pruning would be considered if necessary to assist the Court (it was not) and all other information would not be considered as it did not comply with the Court's directions.

Jurisdictional questions

4 The trees are planted so as to form a hedge and they rise to 2.5 metres. They satisfy the jurisdictional tests at s 14A(1) of the Act. Before making orders, the Court must be satisfied of the matters at s 14E(2): do the trees cause a severe obstruction of sunlight and, if so, is the obstruction so severe as to justify interfering with the trees, when the benefits provided by the trees, and the respondents' own interests such as privacy, are considered?

Discretionary matters

5 If the jurisdictional tests are satisfied, before determining what orders, if any, would be appropriate the Court must consider a range of matters at s 14F. The trees' environmental benefits and their contribution to amenity beyond the site are minor. Therefore the main areas of consideration are any impacts that pruning would have on the trees and their contribution to privacy.

The hedge

6 Fourteen Leyland Cypress trees are planted at regular and close spacings in a single, continuous straight row such that their crowns interlock forming a continuous and solid screen. (The trees are numbered T2-T15 in the application. T1 is a separate Macadamia tree for which no orders are sought.) The trees were clearly planted to form a screen between the two properties.

7 Trees 11-15 were planted by the respondents in December 1999, shortly before the applicants took occupancy of their dwelling. The row was extended, perhaps in a few stages, during the following year, until there were 14 trees in total. That is, Trees 11-15 were first planted so as to form a hedge, and additional trees were later planted to extend the existing hedge, in other words to form a longer hedge. There is nothing to prevent all trees therefore being treated as one hedge, despite the staggered planting times. All 14 trees rise to more than 2.5 metres above the ground at the base of each tree.

8 The land slopes gradually down away from the rear of the Hutchinsons' dwelling so that T2, farthest from their dwelling at the eastern end of the row, is lower than T15 at the western end. The hedge has been pruned in three sections, the top of each section being horizontal rather than following the slope. Trees T2-T5 form the lowest section, T6-T10 the middle section and T11-T15 the upper section. The height of foliage at the middle of each section, and therefore the average height of the trees, is 3.5 metres above ground level, although foliage at the eastern end of each section (e.g. T2, T6 and T11) is up to 3.85 metres above ground level.

Windows

9 Windows W1 to W8 are all north-facing.

10 Windows W1 to W5 are upstairs in bedrooms. Windows W1 and W2 are in the main bedroom. W3 is in a walk-in-wardrobe. W4 and W5 are in a second bedroom.

11 Moving downstairs, W6 is a tall window to the dining room and W7 and W8 are tall windows to the lounge.

12 Windows W9 to W12 are downstairs at the front of the dwelling, facing west. There appears to be no severe sunlight obstruction to these windows from the hedge and the applicants do not press this part of the application.

Shadow diagrams

13 Shadow diagrams provide a useful means of assessing the obstruction of sunlight and often form part of the evidence in matters under Part 2A of the Act. They are usually prepared by professionals with experience in this area. In this case, the applicants provided a shadow diagram (part of Exhibit A) that can only be described as rough. Mr MacCulloch stated that he prepared it for indicative purposes only. It is not clear from the diagram at what time or on what date it represents the shadow of the hedge, nor does it explain how this was calculated.

14 Mr Hutchinson also provided shadow diagrams that he prepared himself (part of Exhibit 1). He explained that he is an engineer and that he used the tools of a website (http://www.findmyshadow.com/) to plot the hedge's shadow. Mr Hutchinson was able to clearly explain his methodology for preparing the diagrams and what assumptions he made in preparing them. His diagrams clearly indicate the dates and times that they represent. Diagrams for both the summer and winter solstices show the shadow at several times of the day (9am, midday and 3pm) and for different hedge heights (3.5 metres and 4.5 metres). I shall return to these below.

The applicants' submissions

15 Firstly, the applicants submit that their dwelling was approved by Council and that all their windows are compliant with the relevant planning codes. They say that therefore there should be no significant privacy issues.

16 The applicants submit that, although the portico outside their ground floor windows obstructs some sunlight, the portico was there before the trees were planted and at that time their windows received winter sunlight.

17 The applicants rely on several photographs (included in Exhibit A) they say show a severe sunlight obstruction before and after pruning. They say other photos show the full overshadowing effect of the hedge before it was pruned, and the sunlight that would be available to them were it not for the hedge.

18 The applicants submit that their own shadow diagrams are meant to be indicative only. They submit that the Mr Hutchinson is not qualified to produce shadow diagrams and that the respondent has relied on a tool available on the internet.

19 One of the applicants is the business manager at a school and hosts meetings at the residence. They say the amenity of their property, especially in the living rooms, is important not only for personal but also professional reasons.

20 The applicants say that the severity of sunlight obstruction caused by the hedge makes their dwelling damp and dark. This not only causes mould to grow, they say, but also affects their wellbeing and causes them stress.

21 The applicants say that, to restore some sunlight to their windows, the hedge would need to be pruned and maintained so that T2-T11 are no more than 3 metres tall and T12-T15 are no more than 3.5 metres tall, measured from the base of each tree. They say the top of the hedge should follow the contour of the land. They say that, as the hedge grows so rapidly, it requires pruning twice every year. They say that pruning the trees will not kill them. They say that they cannot rely on the goodwill of their neighbours and thus require orders from the Court to be certain that the trees will be pruned.

The respondents' submissions

22 The respondents say they planted the hedge for privacy.

23 They refer to a letter from Hornsby Shire Council in February 1999 informing them that the dwelling at the applicants' property was approved. That letter states that "Council has required the site to be provided with adequate landscape screening to minimise impact on adjoining properties." They say that, as the applicants have not provided this, they have attempted to provide screening on their own land by planting the hedge.

24 The Hutchinsons say they have made a reasonable effort to reach an agreement with the MacCullochs.

25 Mr Hutchinson explained his methodology in preparing shadow diagrams. He has provided shadow diagrams for the winter and summer solstices at 9:00 AM, 12 noon and 3:00 PM. The summer diagrams show the hedge at 4.5 metres height and assume T2-T10 are on the same level as the ground floor of the applicants' dwelling, and T11-T15 are on ground 1.5 metres higher. Winter diagrams assume the same ground levels but show shadows for trees of 3.5 metres height as well as 4.5 metres.

26 The Hutchinsons contend that the pruning they have carried out prevents a severe obstruction of sunlight, and that there would be no severe obstruction at any time of the year with the trees at their current height. The Hutchinsons state that they would continue to prune the trees regularly without any need for Court orders. They say that the original orders sought by the MacCullochs were not in the spirit of the Act.

27 The Hutchinsons contend that, even if the Court was to find, contrary to their submissions, that the hedge severely obstructs sunlight, the balance of matters at s 14F would lean in their favour. They say that the trees are attractive, that they provide amenity and screening, and that the higher the hedge the more privacy it gives them. They say that other structures, the awning and portico, are obstructing sunlight.

28 The Hutchinsons say that, as they would bear the costs of trimming the trees, any orders for pruning must be reasonable.

29 The Hutchinsons say that material falling from the trees into the MacCullochs property is not a matter to be dealt with under Part 2A of the Act.

30 The Hutchinsons concede that their trees may cause some obstruction of sunlight to downstairs windows, but an assessment of this would require shadow diagrams, which the applicants should have provided. They say the applicants' shadow diagram is inadequate and argue that their own are a truer representation of the situation.

31 The Hutchinsons submit that, while the heights of trees T2-T4 are acceptable, the other trees are already cut too low. They wish to see the other two sections of trees each at an average height of 4 metres, rather than the current 3.5 metres. They also want to keep the tops of the hedge horizontal as they say this is more aesthetically pleasing and easier to maintain.

32 The Hutchinsons say that pruning the trees once every year is sufficient and that this would be best done in autumn to allow winter sunlight to reach the applicants' windows.

Findings

33 The dwellings are some distance from each other. Windows of the applicants' dwelling overlook the respondents' garden, but this is only from the upstairs bedroom windows, where people do not generally spend significant amounts of time during the day. Overlooking from downstairs windows is prevented by the fence. Other neighbours also overlook into the respondents' garden. Considering these findings, I do not consider that provision of privacy is a reason not to prune the trees.

34 Regarding the letter from Hornsby Shire Council referred to by the respondents, there is no specific mention of where any screening vegetation was to be placed or to what height it must grow. Regardless, the Trees Act does not give the Court jurisdiction to remedy or enforce permit conditions.

35 While photos presented by the applicants show the impact of the hedge prior to pruning, the Court must determine the jurisdictional question of severity as the hedge stands at the time of the hearing (Tooth v McCombie [2011] NSWLEC 1004, for instance).

36 At their current height, none of the trees appears to obstruct sunlight to the upstairs windows. This is supported by the respondents' shadow diagrams. At most, it is possible that there is a small (<5%) obstruction of W1 in the main bedroom by Tree 11, but this is not severe.

37 Sills of the upstairs windows are relatively high. The arrangement of furniture in these rooms is such that people are unlikely to be standing at the windows for extended periods. There do not appear to be significant overlooking issues from these windows. Therefore I do not consider that the hedge is particularly important for screening the respondents' property from the applicants' upstairs windows.

38 Considering the presence of the portico awning and the movement of the sun, during summer there can be no significant obstruction of sunlight to W6 to W8. However during winter the sun would travel that part of the sky visible from these windows between the top of the fence and the portico awning. I accept that the hedge, even at its current height, would obstruct much of that sunlight. The respondents' own shadow diagrams appear to substantiate this finding. Sunlight is available to up to 80% of W6 between the shadows of the fence and the portico, yet this section appears to be entirely in shadow from the hedge throughout the day, apart from short intervals when the shadow of a structural pillar may contribute. The portico awning above this window allows some diffuse light through, whereas the hedge provides a dense screen obstructing all sunlight. Shadows from the fence and portico cover more of W7 and W8 in winter, but the hedge at its current height obstructs the entire remaining area all morning and until early afternoon.

39 Other trees contribute only slight obstruction of sunlight during winter. There are some Maples, but they are deciduous. More distant gum trees are taller with sparse canopies that partially filter the light.

40 Mr Hutchinson's shadow diagrams of the hedge at 3.5 metres height also show that, while trees T12 to T15 may contribute to some obstruction of sunlight to the downstairs windows, this is considerably less than T2-T11, which cause a severe obstruction throughout the morning and into the afternoon. For this reason, I accept the applicants' submissions regarding the required heights of the trees.

41 Although the applicants say the hedge causes mould to grown in their property, this is not a reason to make orders for the trees under the Act.

42 As the hedge obstructs any remaining sunlight to windows W6 to W8, I am satisfied that this equates to a severe obstruction of sunlight and that the Court's jurisdiction is enlivened.

43 The obstruction to these living area windows occurs during winter, when sunlight is desired most. Considering the benefit to the applicants of pruning the hedge, and the minimal impact this would have on the respondents' privacy, I find it appropriate that orders be made for maintaining the hedge at a lower height. The heights suggested by the applicants should allow some sunlight to reach the downstairs windows. However with regard to frequency, I accept the respondents' view that pruning is only required before winter. Although the trees may be significantly taller by summer, they do not obstruct sunlight to the applicants' windows during summer.

44 The trees belong to the Hutchinsons, and it is their responsibility to prune them. I accept that they prefer the aesthetic appearance of three sections of horizontal tops and that they see this as easier to maintain.

Orders

45 As a consequence of the foregoing, the orders of the Court are:

(1) The application is upheld in part.

(2) Beginning 2014, each and every year during the month of April the respondents are to organise and pay for a suitably qualified horticulturist or arborist, with appropriate insurance, to prune the row of 14 Leyland Cypress trees as follows:

(i) T2 to T5 to an average height of 3 metres, measured at the centre of this section;

(ii) T6 to T10 to an average height of 3 metres, measured at the centre of this section;

(iii) T11 to T15 to an average height of 3.5 metres, measured at the centre of this section; and

(iv) any branches and foliage overhanging the common boundary are to be pruned back to the boundary.

(3) The respondents are to give the applicants two weeks' notice of the works in (2).

(4) The applicants are to allow all access necessary for the works in (2) during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 13 February 2014