Land and Environment Court New South Wales

• Medium Neutral Citation: Voeten & anor v Adams [2011] NSWLEC 1106
• Hearing dates: 20 April 2011
• Decision date: 12 May 2011
• Before: Fakes C; Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] hedge; obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr P Voeten (Applicant); Ms E Lockwood (Applicant); Mr D Adams (Respondent); Mrs E Adams (Respondent)
• Representation: Mr A Murrell (Solicitor for the Applicant); Anthony Murrell Solicitors; D & E Adams (Respondents in person)
• File Number(s): 21069 of 2010

Judgment

1 COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mosman against the owners of trees growing on an adjoining property.

2 The applicants are seeking the pruning and subsequent maintenance of eight trees on the basis that they severely obstruct sunlight to windows of their dwelling. The trees are growing along the southern side boundary fence of the adjoining property. In their application the applicants sought orders for the trees to be pruned and maintained at 2.5 m height. During the course of the hearing that was changed to prune to 3.5m and maintain at less than 4m.

3 The windows are located on the northern side of the applicants' dwelling. W1 is the second window to the west on the northern side of their dwelling. This window is to the dining room portion of a large living room. The living room is partly divided into the two components by a short wall. The eastern portion of this room contains a large bay window on the northeast corner of the dwelling.

4 The applicants contend that they lose 80% of the potential light to W1 including 5 hours in winter and autumn.

5 W2 is a relatively small bedroom window. There is a skylight in this room. W3 is a small bathroom window, the lower half of which is opaque. The applicants consider that these windows lose 100% of potential light, which is 6 hours in autumn and winter.

6 They contend that the shading from the trees has increased their power usage for lighting and heating. They say the ground outside the windows is always in the dark making it hard to landscape effectively.

7 The respondents value the trees for their amenity and the privacy they afford, in particular trees 6-8. They contend that they have responded to the applicants' requests to the extent enabled by the Mosman Council Tree Preservation Order. The respondents question the extent to which the applicants lose light to windows, particularly windows of low relative importance such as the bathroom window.

The trees and actions of the respondents

8 There are eight trees subject to this application. They are numbered on the diagram in the application from east to west. Trees 1,2,3, and 6,7,and 8 are Lillypilly ( Syzygium paniculatum ) and Trees 4 and 5 are Tuckeroo ( Cupaniopsis anacardioides) .

9 According to the respondents, the trees were planted approximately 24 years ago. Trees 1-5 are planted in a garden bed that adjoins a side path and then widens into a terraced garden. Trees 6-8 are planted on the southern end of an elevated terraced area and are quite separate to trees 1-5. To this end, we consider it appropriate to consider the two groups as separate hedges.

10 The applicants purchased their property from the estate of a family member (the house has been in one of the applicant's families since it was built in 1904; the respondents' property was built in 1898). The applicants state that the trees were about 3 m in height when they moved in. The respondents estimate the trees to have been about 5 m at that time. The tallest trees are now estimated to be about 9 m high.

11 According to the applicants, the trees were pruned about 8 years ago but the pruning resulted in thicker regrowth. However, material provided by Mosman Council (the Council) shows a request for the removal of three trees, one Pittosporum and two Syzygium sp, made by the respondents. Permission was granted on 29.11.2006 with a requirement for replanting trees that would attain a minimum height at maturity of 8m. Presumably this work was completed.

12 In May 2010 the applicants wrote to the respondents requesting hedging of the trees because of loss of sunlight to windows and their clothesline (at the rear of their dwelling). They also state 'As the foliage is high, we have no privacy at the fence height where the thick trunks are pushing over the common fence. The excessive shade and neglect is no longer tolerable. We suggest the trees be pruned to fence height, with annual maintenance to a reasonable height. [We note that the request to prune to fence height somewhat contradicts the need for privacy.] The letter notes that the respondents' trees encroached onto their property by some 3 m.

13 In response to this request, the respondents sought advice from Mr Kyle Hill, consulting arborist, Growing My Way Tree Services. Material in the respondents' bundle shows the trees were inspected on 19 June 2010. The trees as a group were estimated to be below 10 m and structurally sound. The arborist recommends crown thinning of small diameter branches no greater than 50 mm in diameter, pruning to create reasonable separation from applicants' property, removal of a branch overhanging the applicants' property, removal of deadwood, canopy heights not to be significantly reduced, total foliage volume not to exceed 15-20%, and all works to be supervised by an AQF level 5 arborist.

14 Council records show that on 1 July 2010 the applicants applied to council for the pruning of four Lillypillies and two unspecified trees, presumably the Tuckeroos, on the respondents' land. The reasons given were to increase solar penetration, overcrowding, pest control, general tree care and hazard reduction. Council gave permission to prune the Lillypillies by no more than 15% of their overall live canopy with no branch over 100 mm in diameter to be removed. The Tuckeroos were permitted to be pruned by 10%. More specifically, the pruning instructions for the six trees state: Consent given to reduction prune and selectively thin to improve solar access. Pruning should maintain/ improve crown form . The assessment report also records that permission was given to prune a Magnolia grandiflora by 5%. It is also noted that the respondents did not sign the application. The guidelines on the application form state that ' if the tree or branch to be pruned/ removed is within the neighbour's boundary the owner must sign the application.'

15 On 12 July 2010 the respondents applied to council for permission to prune the trees in accordance with their arborist's report. (We note that the application also included pruning of trees not subject to the application before the Court.) Permission was given to prune the Lillypillies and Tuckeroos as specified in the consent given to the neighbours. The Instructions note that ' No additional pruning is permitted '.

16 The respondents state in their evidence that at the time they made their application to council that they asked whether council would permit the reduction in height requested by their neighbours. They were informed that no approval would be given for such pruning.

17 We estimate that the maximum height reduction permitted would have been no more than 1 m as the assessment report by the council tree management officer records the heights of the Lillypillies at 9 m and the Tuckeroos at 8 m

18 The trees were pruned on 13 August 2010. The respondents state that they spoke to their neighbours after the pruning was completed but the applicants were still dissatisfied and intended to take the matter to the Land & Environment Court.

19 The applicants obtained a Tree Report from Mr Mark Hartley, The Arborist Network dated 26 August 2010 as part of the application under the Trees Act . The stated scope of the report 'is to discuss the likely response of the two Lilli Pillis [sic] and two Tuckeroos to being cut back somewhere near fence height.' It is not clear from the report whether the trees were inspected, given that there are three Lillypillies, not two.

20 In the 'Background' section the report in part states;

Recently the Lilli Pillis have been pruned to allow for improved light penetration. My client is keen to reduce the trees and to provide for additional planting in order to restore the intended screening.

The discussion section states:

In order to provide hedge style screening from your property extending from the fence line to approximately 3.5-4 metres in height would require the tops of the trees to be removed. Both these species are likely to sucker heavily if they are cut back particularly if this pruning takes place in late spring to late summer.

Mr Hartley refers to the proposed action as a 'drastic reduction'. Whilst this will result in a number of large wounds it is unlikely to cause the decline of the tree and the normal concerns about the structural attachment of new growth as the trees would be maintained as a low hedge.

New growth will have strong apical dominance and as a result will need to be managed by repeated pruning. To form a dense hedge it is advisable to clip small amounts regularly (several times a year) rather than removing large amounts infrequently (once a year or less).

21 The 'Recommendations' do not suggest at what height the trees should be initially reduced to; rather the author suggests contacting the neighbour to ask if they are prepared to have the trees reduced and turned into a hedge. In addition we have difficulty reconciling drastic reduction pruning causing a large number of wounds, especially with regard to the Tuckeroo trees, with a conclusion that the trees are unlikely to decline. We therefore consider the report to be of no assistance to the Court.

The hearing

22 The hearing commenced on site at 9.30 am on a generally overcast day. No experts were present at the hearing.

23 We inspected each of the windows from within the house and later from outside. At approximately 10.00-10.30 am the sun came out and we were able to observe the sunlight on the windows at that time. We observed at least 50% of W1 to be in sun at that time however the applicants' solicitor disputed this.

24 The positions of the trees were verified. The respondents challenged the accuracy of the applicants' diagram with respect to the location of the trees and the windows. After viewing the site, we consider the diagram on page 6 of the respondents' bundle (Exhibit 1) to be the most accurate. The effect of this is that the trees are further to the west than shown by the applicants. The trunk of tree 1 is slightly to the west of the north- western corner of W1 however the canopy of tree 1 does extend to the east and north of the trunk. Trees 6-8 are located to the west of the applicants' building line.

25 We observed the trees from the respondents' property. We note that the lowest part of the upper canopy of the Tuckeroos is approximately 5 m above ground and that of the Lillypillies (trees 1-3) about 6 m above ground. We note that the outcome of the pruning may not have been specifically what council intended or what Mr Hill specified however the effect has been a substantial lifting of the trees' canopies.

26 While on site we noted the presence of a number of palms growing on the respondents' property to the east of the nominated trees. Similarly there is a mature Stenocarpus sinuatus (Queensland Fire Wheel) growing on the applicants' property near the bay window in the lounge room.

27 Given the respondents' concerns regarding privacy, we observed their property from a first floor apartment on the southern side of a property at the rear of the applicants' land. We noted that trees 6-8 and to a lesser extent, trees 4 and 5, do provide screening of the respondents' property. However, it was pointed out that there are other units with a greater potential for overlooking elsewhere in the apartment complex. We note that, due to the pruning and the resulting distribution of foliage, there is little screening provided by trees 1-5 between the applicants' and the respondents' properties.

28 The applicants engaged Mr Cameron McFadzean of denebdesign to prepare shadow diagrams. The modelled diagrams show the shadows expected to be cast by the respondents' dwelling and trees at 8.5-9 m high and at 3-3.5 m at the winter solstice and the autumn and spring equinoxes. We note that the diagrams show five stylised trees; two of these are shown in positions not occupied by trees subject to the application. A note on the plan states: Existing trees have not been shown for purposes of clarity - they have been removed after their shadow has been calculated. The remaining three trees are shown at an average height above average ground level and not actual heights above actual ground levels.

29 We note that on the winter solstice, with the trees at 3-3.5 m, the only window to have minor impact of shadowing by trees is a small portion of window 2 at 3.00 pm. It would also seem to us that, discounting the shadows cast by trees in locations not subject to the application that W1 would receive sun from 9.00 am until 11.00 am however the rendering of the diagrams gives no certainty to this observation. We also note that the diagrams show a continuous canopy which was not the situation at the hearing.

30 We note the 'Solar Assessment Notes' by Mr McFadzean in his report (exhibit B).

We have determined that a pruned height of 3m from Natural Ground affords the best solution to improving the solar access to the living room windows of No 44. The existing conditions show a tree height of 8.5-9 m high.

Whilst on site it was noticed that some pruning has been undertaken (limbs and foliage removed from 0-approx. 3.5m high). It is our opinion that this current state of pruning does not substantially improve from the existing conditions as modelled. Primarily due to the overhead canopy remaining therefore the only solar access possible is very low sun angles - ie <9am only.

Under existing conditions the solar access available to the living room windows of No 44 is effectively zero.

Under proposed 3m prune height of trees the solar access affords at least a min of 4 hrs direct solar access.

31 We note some inconsistencies in this statement in view of what we observed on site. As previously stated, trees 1-5 have been lifted to 5-6 m not 3.5m. We do not see how the modelled diagram can be the 'existing conditions' when there are trees not subject to the application in the diagrams and they do not show the extent of pruning. Similarly, the fact that the shadow diagrams do not include all of the trees subject to the application makes the impact of particular trees on each of the windows quite difficult to determine.

Submissions

32 Mr Murrell on behalf of the applicants submits that the shadow diagrams and the photographs in the application demonstrate that there is a severe obstruction of sunlight to windows W1-W3. He maintains that the diagrams show that the trees should be pruned to 3-3.5m. He contends that W1 and W2 are particularly important windows. W2 is currently a child's bedroom window. Mr Murrell argued that light to this window between the hours of 9.00 am and 3.00 pm would become much more important as the child aged and inevitably spent more time there. He conceded that if trees 1-5 were pruned they would not press the pruning of trees 6-8 as W1 and W2 would receive sunlight earlier in the day.

33 In reply, the respondents maintain that they have pruned the trees to accommodate the needs of the applicants within the constraints of the council's tree preservation order. They contend that trees 6-8 do not severely obstruct sunlight to any window. They also argue that in determining impact, equal weight should not be given to each window, rather a hierarchy of importance. Of most importance is a living room, then a bedroom and then a bathroom.

34 With respect to privacy, the respondents major concern is to maintain trees 6-8 as they are. In consideration of an alternative height to which the trees could be pruned, they suggested 4.5 m would be appropriate for the Lillypillies 1-3, however they were uncertain as to whether or not Tuckeroos would be tolerant of such hard pruning.

The framework for consideration

35 Section 14A(1) provides:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

36 Section 14B provides:

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

37 Section 14D(1) provides:

14D Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the applicant's land, or

(b) any view from 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.

38 Section 14D(2) provides the powers to make an order under subsection (1).

39 Section 14E(2) provides:

14E Matters of which Court must be satisfied before making an order

.

(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

40 Section 14F provides for the matters to be considered by the Court before determining an application.

Findings

41 Based on the site inspection, we are satisfied that the 2 groups of trees satisfy the requirements of s 14A(1) in that the group of trees contains two or more trees (s 14A(1)); are planted so as to form a hedge (s 14A(1)(a)) and have a height of at least 2.5 m (s 14A(1)(b)). Hedge 1 comprises trees 1-5 and Hedge 2 comprises trees 6-9.

42 Section 14E(2)(a)(i) raises four separate matters. First, the obstruction must be "sunlight", second, it must be to a "window", third, any obstruction must be "severe" and fourth, the Court must be "satisfied".

43 On the first matter, we accept that the potential obstruction is of "sunlight". Second, and based on the site inspection, we accept that the trees in hedge 1 have the potential to create an obstruction of sunlight to windows W1, W2 and W3. We do not accept that the trees in hedge 2 obstruct sunlight to W1 or W2 but may obstruct sunlight to W3. However, we accept the respondents' position that each window should not be given equal importance.

44 The bathroom window is small, with the lower half frosted. It is a room not occupied for long periods of time. With respect to Mr Murrell's arguments concerning W2, we consider that for some 13 years, between the hours of 9 am and 3 pm for 5 days per week for up to 40 weeks per year, children are attending school. We also consider it unlikely that the bedroom would be occupied for the extent of those hours during non-school times. We also note that W2 is quite small and the room has a skylight. We are not persuaded that Mr Murrell's assertions should be given weight in this instance.

45 W1 is of more importance but it is a dining area within the main living room at the front of the dwelling. This living room has a large bay window that enables views to the Harbour and the heads. There is no disputed obstruction of sunlight to the living room window. What we saw at the viewing from W1 was a substantial part of the respondents' southern roof, the trunks of T1 and T2 both of which had all of their branches removed to create a clean trunk for some 5 - 6 metres. The effect of this was to provide a view of the respondent's roof and the northern sky above it.

46 Notwithstanding the inadequacies of the shadow diagram, with respect to Hedge 2, we consider that even if the trees had some impact on windows 2 and 3, we do not consider the impact to be 'severe'. Therefore as s 14E(2)(a)(i) is not satisfied for these trees, no orders can be made for any interference with them and this element of the application is dismissed. Further, given the reasons in [44], we are not minded to make any orders for any interference with any tree subject to the application to facilitate more sunlight to windows W2 and W3.

47 With respect to W1, the applicants provided shadow diagrams that, in our view, do not properly depict the actual circumstances of the trees subject to the application or of the site. Our concerns are given in [31]. If the 2 most easterly trees are included to depict other vegetation such as the palms and the Fire Wheel Tree that is not stated in the report. However, their inclusion demonstrates that trees other than trees 1-5 could have an impact on sunlight to W1. As the author of that report was unavailable for cross-examination, we are left in doubt.

48 Based on photographs tendered by the applicants we accept that at some stage prior to the hearing and prior to the pruning of the lower branches of trees 1-5, there may have been what might have been described as a severe obstruction to sunlight to windows W1-W3. However we are not satisfied that the obstruction we observed at our site inspection could in any way be described as severe. Similarly, in our view, the inadequacies of the shadow diagrams do not support the applicants' position with respect to those trees.

49 In accordance with s 14E(2)(a)(i), we are not satisfied that trees 1-5 (hedge 1) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, and as such no order can be made in relation to this contention.

50 Therefore as a consequence of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

J Fakes

Commissioner of the Court

P Hewett

Acting Commissioner of the Court

Decision last updated: 16 May 2011