Land and Environment Court New South Wales

• Medium Neutral Citation: Spencer v Messenger; Lord v Messenger [2012] NSWLEC 1074
• Hearing dates: 27 March 2012
• Decision date: 27 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld; pruning ordered

• Catchwords: TREES [NEIGHBOURS]; Hedge, obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr P Spencer (Applicant: 11/21159); Mr I and Mrs J Lord (Applicants: 11/21160); Mrs C Messenger (Respondent - both matters)
• Representation: Applicant (11/21159): Mr P Spencer (Litigant in person); Applicants (11/21160) I and J Lord (Litigants in person); Respondent: Mrs Messenger (Litigant in person)
• File Number(s): 21159 of 2011; 21120 of 2011

Judgment

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

1 COMMISSIONER:The Spencers and the Lords, applicants in these matters, live in two ground floor units of a three-storey unit block in Collaroy. Both couples purchased their properties in 2006. At that time there was an existing Lillypilly hedge growing along the rear boundary of Mrs Messenger's property, (the respondent). A photograph taken in 2008 from the Lord property shows the hedge to be about 4.5m tall.

2 The Spencers and the Lords have applied to the Court for orders for the pruning, and subsequent maintenance, of the hedge to a height of 4.5m. They are prepared to pay for this. The applications are made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006

3 The applications are made on the basis that the Lillypillies severely obstruct morning sunlight, particularly in winter, but at other times during the year. The Lord's application also considers a loss of views of the sky from their dwelling.

4 Mrs Messenger purchased her property about 3 years ago and she values the privacy the trees afford and the screen they provide between her property and the three-storey unit block. She would prefer to maintain the trees at their current height.

5 These are two separate applications but as they relate to the same trees, the hearings were held concurrently. This judgment addresses both applications.

6 The on-site hearing commenced with an inspection of the trees from the Messenger property. In applications made under Part 2A, there are several jurisdictional tests that must be satisfied. The first is s 14A(1) - that is, are the trees a hedge for the purpose of the Act.

7 Section 14 A requires there be a group of at least two trees, planted so as to form a hedge, and which rise to a height of 2.5m. I am satisfied that the row of Lillypillies meets the requirements of s 14A(1). A 6m height stick was used to measure their height; at the time of the hearing the trees are on average about 7m high.

8 At the hearing Mrs Messenger stated that she had removed a number of trees from her property, including another row of Lillypillies, some tree ferns and a dead eucalypt. When looking back towards the unit block from Mrs Messenger's backyard and pool, the top storey was visible but the ground and middle storeys were obscured by the Lillypillies. The top storey units have lattice panels and planter boxes along the east facing balconies.

The Lord Property

9 The hearing moved to the applicants' units. The Lord's unit is on the northern end of the unit block. The unit faces east. The living room and main bedroom open onto a courtyard. The floor level of the bedroom is some 750 mm above the floor level of the living room. Mrs Messenger's hedge extends the full length of the Lord's rear boundary.

10 The Lords stated that when they moved in, the morning sun extended to the kitchen located at the western end of the living room but they now lose about 2 hours of morning sun in summer and 3-4 hours in winter.

11 The nominated windows comprise full-length windows and glass doors along the eastern side of the dwelling. Glass doors are considered as windows for the purpose of the Act. The views said to be lost are of the sky, including the stars at night. The viewing points include seated views from well within the living room. The current view is of the hedge.

12 Whilst on the Lord's property I observed the vegetation on other properties that may obstruct sunlight. This includes a thin but reasonably tall Bottlebrush in the nearest corner on the property diagonally to the northeast, and palms growing along the nearest boundary of the adjoining property to the north. Part of the courtyard, and both relevant rooms, are overhung by the balcony of the unit above; part of the balcony is a curved extension over the living room.

The Spencer property

13 The Spencers live in the adjoining unit to the south of the Lord's unit. The layout is a mirror image with balconies above. The Spencer's application is limited to sunlight although similar submissions were made about loss of views and a feeling of enclosure.

14 The Messenger property extends across the majority of the Spencer's boundary however the Spencer property also adjoins another to the southeast. On the closest corner of this property is a dead Banksia and further back, a Phoenix Palm. These trees may limit early morning summer sunlight.

15 The Spencer's main concerns are about the loss of morning sun in winter when the sun rises further north of east.

Section 14E(2)

16 Section 14E(2)(a)(i) states that the Court must not make an order under Part 2A unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. With respect to the Lord's application, s 14E(2)(a)(ii) also applies with respect to a severe obstruction of a view from an applicant's dwelling. If s 14E(2)(a) is satisfied, the Court must then consider s 14E(2)(b) and the balancing of the parties' needs before any orders can be considered. Section 14E(2)(b) requires consideration of the discretionary matters in s 14F.

17 After viewing the trees, the windows in question, and hearing from the parties, I am satisfied that the Lillypillies growing at the rear of Mrs Messenger's property do severely obstruct sunlight to both the Lord and Spencer windows. The issue of views is considered later. Therefore as s 14E(2)(a)(i) is satisfied, I must consider s 14E(2)(b) and s 14F.

Discretionary matters

18 The relevant matters in s 14F are:

• The trees are planted along the rear boundary of quite a large back garden. They are entirely on the respondent's property.
• It is not known whether the trees were present when the applicants' building was constructed about 9 years ago, as none of the parties owned their properties at the time.
• The trees were certainly present when each party purchased their property and they were in excess of 2.5m. The unit block was present when Mrs Messenger purchased her property.
• No Development Application was presented in evidence but the applicants stated that each of the upper level units has a 1m wide planter box along the inner edge of the balconies; some have lattice screens. It is quite reasonable to assume that these structures were part of the approved development and designed or conditioned to limit/ prevent direct overlooking.
• The trees have no social, historical or cultural value but being Lillypillies, they will contribute to biodiversity.
• The trees contribute to the scenic value, garden design, general amenity and landscaping of the respondent's property. Mrs Messenger values them for the privacy they afford her property and the screening they provide. She is concerned that too much pruning will compromise her privacy and expose more of the building.
• The species is amenable to hedging. The extent of reduction sought by the applicants is unlikely to have any detrimental effects on tree health or structure.
• There are other trees to the north and northeast of the Lord property that would obstruct some late morning winter sun. The balconies above will limit direct overhead sunlight.
• The hours of sunlight lost as a consequence of the trees is estimated at 2 hours in summer and up to 4 hours in winter. The living areas face east and so the aspect available to the applicants is limited.

Findings

19 In considering whether the severity of the obstruction is such that the applicants' interests in having the obstruction remedied outweighs any other matters, including Mrs Messenger's privacy concerns, I find that it is appropriate to make the orders sought by the applicants.

20 I acknowledge Mrs Messenger's desire for privacy, but I am satisfied that the planter boxes and lattice screens on the middle and top storey units will prevent direct overlooking of her property. I am also satisfied that a height of 4.5m will ensure a good screen between her property and the applicants' units.

21 Rather than order maintenance at a height of 4.5m, I propose to order an annual pruning to take place in autumn so that the maximum benefit is obtained throughout the winter, with the regrowth being less critical in the summer months.

22 As initially proposed, the Lords and the Spencers are to pay for the work but Mrs Messenger is required to provide all reasonable access for the work to be carried out safely and efficiently.

23 With respect to the views sought by the Lords, I do not propose to make separate findings except to say that the orders should address those concerns.

Orders

24 As a consequence of the forgoing, the Orders of the Court are:

(1) The application to prune the trees to 4.5m is upheld.

(2) During the month of April 2012, the applicants are engage and pay for an AQF level 3 arborist or horticulturalist with appropriate insurances, to prune the Lillypillies to a height of 4.5m as measured from within the applicants' properties.

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The respondent is to provide all reasonable access for the purpose of quoting and then the carrying out of the works on a minimum of three working days (verbal) notice.

(5) Orders (2) -(4) inclusive are to be carried out annually each April.

___________________________

J Fakes

Commissioner of the Court

Decision last updated: 29 March 2012