Land and Environment Court New South Wales

• Medium Neutral Citation: Owen & Anor v Mason & Anor [2011] NSWLEC 1301
• Hearing dates: 21 October 2011
• Decision date: 21 October 2011
• Jurisdiction: Class 2
• Before: Fakes C; Galwey AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; obstruction of light; hedge pruned prior to hearing; damage to property insufficient to warrant an order against the respondents
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Wisdom v Payne [2011] NSWLEC 1012
• Category: Principal judgment
• Parties: Mr R Owen (First Applicant); Ms Y Owen (Second Applicant); Mr C Mason (First respondent); Ms S Mason (Second respondent)
• File Number(s): 20620 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONERS: This is an application pursuant to s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Burraneer against the owners of approximately 53 trees growing on adjoining land.

Part 2

2 Dealing with Part 2 first, the applicants contend that roots of one of the trees, nominated as T4, a X Cupressocyparis leylandii 'Castlewellan Gold' (Leyland Cypress) has lifted pavers on their property and has therefore caused damage. They are concerned that further damage may arise from trees T1-T8 and that these trees may cause damage to their house. They are also concerned that the lifted pavers could be a trip hazard for anyone using the side path.

3 The orders the applicants seek are based on an arborist report by Jackson's Nature Works undertaken on 7 June 2011: that the pavers be lifted, roots removed, pavers re-laid and a root barrier installed.

Jurisdictional tests

4 Section 10(2) of the Act states that the Court must not make an order under this part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

5 At the hearing one of the pavers was lifted and a root belonging to a Cypress was seen. The respondents' cypress trees are the only trees in the vicinity. The closest tree is T4. We are satisfied that the damage has been caused by one of the respondents' trees, probably T4.

6 As s 10(2) is satisfied, the Court may make an order if it considers that the circumstances warrant the making of a court order.

Discretion

7 We noted that at most six pavers were displaced and only two lifted to any degree that may pose a risk as a tripping hazard.

8 We were informed that the paving existed when the applicants purchased their property about 16 years ago.

9 The applicant stated that he had been aware of the lifted paver for about 12 months but had not notified the respondents prior to making the application. Therefore no opportunity was afforded the respondents to deal with the issue.

10 No other damage was seen on any other section of the paving and no damage to the dwelling was indicated.

11 While we are satisfied that at least one root of one of the respondents' trees has caused damage, the damage is very minor and capable of repair by the applicant. In our view the severing or shaving of the root is unlikely to be detrimental to the health or structural integrity of the tree.

12 On this basis, although we are satisfied we have jurisdiction to make an order, as a matter of discretion afforded by s 9 of the Act, no orders will be made with regard to the application made under Part 2 of the Act. As a consequence, t hat element of the application is dismissed.

Part 2A

13 Turning to the application under Part 2A, the applicants contend that a hedge comprising at least 53 trees severely obstructs views from their dwelling and that some of the trees obstruct sunlight to windows of their dwelling. The trees 1-30 are Leyland Cypress; trees 31-43 are a mixture of Leyland Cypress, Metrosideros excelsa and Pittosporum tenufolium cv. Approximately 10 Murraya paniculata form a secondary and suppressed component of the mid section of the row of trees (these are numbered 24A-33A on the diagram in the application).

14 The applicants seek orders for the pruning of sections of the hedge in accordance with recommendations made by their arborist, Mr Jackson, on 7 June 2011. These are:

(1) Prune trees T1-T15 to 4 metres, and maintain at no more than 4.3 metres.

(2) Prune trees T16-T19 to 2 metres, and maintain at no more than 2.3 metres.

(3) Prune trees T20-T33 to 2 metres, and maintain at no more than 2.3 metres.

(4) Prune trees T34-T43 to 3 metres, and maintain at no more than 3.3 metres.

(5) Prune trees T24A-T33A to the height of the surrounding hedge.

(6) All subsequent plantings to be restricted to the above heights.

(7) Prune branches and foliage overhanging the common boundary back to the boundary line and maintain at the boundary.

15 Section 14B of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight and views as a result of trees growing on adjoining land. The applicants raised the issue that the rear part of the respondents' land may be crown land occupied under Permissive Occupancy or a Waterfront Licence. The respondents claim that the rear portion of their property is a separate Lot but they receive a single Council rates notice for both l ots. The relevance of this is dealt with later in the judgment.

Jurisdiction

16 With respect to the application made under Part 2A of the Act, there are a number of jurisdictional tests that must be satisfied before the making of any orders.

17 We are satisfied that the first test in s 14A is met, that is, there are two or more trees planted so as to form a hedge, which rise to a height of 2.5 metres and which are on appropriately zoned land.

18 In this case we are satisfied that the great majority of trees meet these criteria. We note that some Murraya paniculata shrubs are included within the hedge. These may be shorter but they are subsumed by much taller trees and will be included in any determination. This approach has been discussed in Wisdom v Payne [2011] NSWLEC 1012 at [66] - [ 67] .

The trees

19 The hearing commenced from the respondents' property. The most northerly of the trees, closest to the respondents' rear balcony, were measured to be approximately 6 metres high. Apparently the trees were pruned earlier in the week, several days prior to the hearing.

20 The respondents value the trees for the privacy they a fford their elevated rear deck. The respondents have lived on their property for 14 years and planted the hedge in 1998.

21 In 2009 the applicants built a rear deck that is approximately 600mm higher than the respondents' deck and about 5 metres to the south. The west facing windows of the applicants' living room are somewhat closer than this.

22 The respondents contend that the height to which the northern part of the hedge has been pruned maintains their privacy but enables views from the applicants' deck. They contend that the 4.3 metre height recommended by Mr Jackson would remove that privacy.

23 The mid portion of the hedge near the respondents' pool ranged from 3.5 metres to 5 metres in height. One tree was noticeably taller than the others. According to the respondents the reason this was left taller was to screen and soften the view to the rear deck of the property at the southern end of the applicants' property. A top storey was added to this dwelling in 2008. Again the respondents contend that the current height of the trees is necessary for their privacy from both adjacent dwellings.

24 At the southern end of the respondents' land, the portion about which there is some dispute over its ownership, is a mixed planting of Pittosporum and Metrosideros that is contiguous with the Cypress. These trees have not been pruned recently. We noted the proximity of the adjacent dwelling to that part of the hedge.

Views

25 The applicants contend that both the height and the width of these trees severely obstruct their views.

26 We then inspected the views from the applicants' dwelling. There are three nominated viewing points.

27 Relevant here is s 14E(2)(a)(ii) which states that the Court must not make an order unless the trees are severely obstructing a view from a dwelling situated on the applicant's land.

28 View 1 (V1) is from a small north-facing balcony that principally faces up the applicants ' driveway. The applicants stated that the balcony is perhaps used briefly once per day. The western end of the balcony extends past the edge of the dwelling and the view is along the side boundary between the parties' properties. There is a very narrow view of Burraneer Bay between the Pittosporums and the dwelling at the southern end of the applicants' land. The remainder of the view from that point is severely obstructed by the Cypress and to that extent s 14E(2)(a)(ii) is satisfied from that position. However the entirety of the view from the main viewing points must also be considered and the merits of interfering with the trees considered under s 14E(2)(b) of the Act .

29 The main view is from V2, being the rear and extensive balcony off the main living area . V3 is the eastern and slightly recessed part of that balcony.

30 We note that the views of Burraneer Bay are clear with only minor obstruction caused by one of the Cypress trees (the one that has been left taller than the others) and to a small degree by the Pittosporum s .

31 Section 14E(2)(a)(ii) requires that the trees are currently causing a severe obstruction to the view. Even though at the time of the making of the application that may have been the case, in this instance the Court has no jurisdiction to make any orders with regard to the views from V2 and V3.

32 With regard to V1, when we consider the narrowness of this view line, the proximity of the respondents' property and issues of privacy, and the secondary nature of the use of this balcony, as a matter of the discretion provided by s 14D , no orders will be made for any interference with any of the trees for the purpose of remedying any obstruction of views .

Sunlight

33 Turning to the obstruction of sunlight, we note that no shadow diagrams were provided by the applicants.

34 Windows W3 and W4 face south and were not pressed by the applicants.

35 We accept that the respondents' trees were taller when the application was made. We note that the windows in contention, W1 and W2, face west and only afternoon sun could be lost. We also note that the proximity and height of the respondents' dwelling would cast shadows from midday to early afternoon. The applicants contend that the trees reduced afternoon sunlight from three hours to one hour. The eaves of the applicants' dwelling would also provide some shading in summer.

36 Putting the applicants' case at its highest, we accept that there may be a severe obstruction of late afternoon sunlight. However we consider that any further reduction of the respondents' trees, as per the recommendations of Mr Jackson, is not warranted as to reduce them to a height where sunlight was not obstructed would severely compromise the respondents' privacy.

37 We also note that the applicants' living room has north-facing windows, as well as extensive windows and glass doors on the south side, and that whilst some direct sunlight may be obstructed there is much ambient light.

38 Therefore, as a matter of discretion afforded by s 14D , we are not minded to make any orders with regard to the trees and sunlight.

39 As the key jurisdictional tests are not satisfied with respect to the Pittosporums and any of the trees located on the southern portion of the respondents ' land , we consider the issue of establishing land ownership, raised in [15], to be of no material benefit in the matter.

40 If circumstances change, an applicant may make a new application. This is considered in Hinde v Anderson & anor [2009] NSWLEC 1148. If the change of circumstances involves the trees at the southern end of the respondents ' land, then the issue of ownership would have to be investigated.

Orders

41 As a result of the foregoing, the Orders of the Court are:

(1) The application in its entirety is dismissed.

__________________________

J Fakes

Commissioner of the Court

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 24 October 2011