Baker v Choi
[2022] NSWLEC 1161
•24 March 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Baker v Choi [2022] NSWLEC 1161 Hearing dates: 24 March 2022 Date of orders: 24 March 2022 Decision date: 24 March 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [23]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – trees damaging the applicant’s property and the common boundary fence – Pt 2A application concerning obstruction of sunlight – sunlight obstruction is severe – orders for tree removal – height restriction for future hedge plants
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10. Pt 2A ss 14A, 14B, 14E, 14F
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Texts Cited: Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016
Category: Principal judgment Parties: Luke Baker (First Applicant)
Nadia Baker (Second Applicant)
Shanzhi Choi (Respondent)Representation: L Baker (Self-represented) (First Applicant)
N Baker (Self-represented) (Second Applicant)
S Choi (Self-represented) (Respondent)
File Number(s): 2021/335462 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background to the application
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COMMISSIONER: Luke and Nadia Baker (the applicants) have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). They seek orders for pruning or removing a row of cypress trees on neighbouring land belonging to Shanzhi Choi (the respondent).
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Under their Pt 2 application, the Bakers claim the trees are damaging their roof and guttering, as well as displacing the boundary fence. Under their Pt 2A application, they claim the trees obstruct sunlight to windows of their dwelling.
Framework for this decision
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Before I can make orders under Pt 2 of the Trees Act in these proceedings, I must be satisfied at s 10(2)(a) that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property.
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Before making orders under Pt 2A of the Trees Act, I must be satisfied at s 14E(2)(a)(i) that the trees are severely obstructing sunlight to the applicants’ windows.
Reasonable effort to reach agreement
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Sections 10(1)(a) and 14E(1)(a) require the Court to be satisfied that the applicants have made reasonable effort to reach agreement with the trees’ owner. The history of correspondence with the managing agent of the respondent’s property, and their unsuccessful attempt to arrange mediation, demonstrate that the Bakers made reasonable effort to reach agreement.
The trees
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Eight Leyland cypress trees grow in a row on Mr Choi’s property, close to the common boundary shared with the Bakers. The trees are 5–6 metres tall with stem diameters of 10–25 cm.
The Pt 2 application
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The Bakers submitted that foliage and other debris from the trees fall onto their roof and block their gutters. They cannot readily access the gutters on their two-storey dwelling to clean them out. Debris blocks and damages their gutters. Branches are close to the roof guttering. The Bakers said branches strike the guttering during windy weather and will damage it.
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Mr Choi pointed out at the onsite hearing that the trees’ branches are not touching the Bakers’ roof or guttering.
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The Bakers stated that one tree is pushing against the fence. The fence leans only slightly now but they are concerned this will get worse.
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The Bakers are also concerned that the trees’ roots will damage underground pipes on their side of the boundary.
Findings
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Although I could not observe from the ground any damage to the Bakers’ roof guttering, I accept that damage is likely in the near future. As Mr Choi stated, the trees’ branches and foliage are not touching the guttering, however at their current height the branches would move sufficiently in strong winds to hit the guttering. This would cause minor damage such as small dents and scratches. This could be avoided by pruning the trees to provide clearance of a metre between the trees and the roof guttering.
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On the other hand, reasonable property maintenance includes clearing out gutters to prevent damage, as per the principle in Barker v Kyriakides [2007] NSWLEC 292. I will not make orders for Mr Choi to clean out the Bakers’ gutters.
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The fence on the common boundary has been displaced where the stem of one tree pushes against it. There is no reasonable way of avoiding greater displacement other than removing that one tree.
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No evidence of root damage was observed or adduced, so no orders could be made on that basis.
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Therefore, to resolve issues raised within the Bakers’ Pt 2 application, it would be sufficient to remove one tree and prune the other seven trees clear of the roof guttering. However, due to my decision in the Pt 2A application below, such orders are unnecessary.
The Pt 2A application
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The eight trees are planted at close spacings in a straight line; their foliage provides a continuous dense screen along the boundary. They were planted for privacy. They are planted to form a hedge and are more than 2.5 metres tall, so Pt 2A applies to these trees (s 14A(1) of the Trees Act).
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The trees are only a metre or so from the eastern side of the Bakers’ dwelling. On the ground floor are windows to living rooms – the kitchen and dining room – and a laundry. On the first floor are windows to bedrooms and bathrooms. The trees reach to the Bakers’ roof height; the dense screen of foliage is a metre or less from all of these east-facing windows. The trees obstruct all sunlight to all these windows throughout the morning, the only time sunlight is available to these windows. I am satisfied that the obstruction meets the test at s 14E(2)(a)(i) of the Trees Act: it is severe.
Matters at s 14F
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I have considered the matters at s 14F of the Trees Act. The trees are close to the boundary. They might not require consent for pruning or removal, as they are within 2 metres of a building.
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The trees contribute to the respondent’s landscape. Mr Choi submitted that the trees provide a screen between the properties, reducing the potential for overlooking from the Bakers’ dwelling into his dwelling, back garden and pool. The Bakers submitted that the trees’ screening impact was effective when the trees were younger, but now that they have grown tall, with foliage limited to their upper stems and branches, there is little or no screening between the trees’ bare lower stems. I find that the trees provide some screening, but I accept the Bakers’ submission that their effectiveness is now limited.
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Beyond this, the trees provide only minor contribution to environmental values and to public amenity.
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The Bakers suggested that these trees, or any replacement planting, should be limited to the height of the boundary fence, approximately 2 metres. Mr Choi submitted that the trees should be maintained at the height of his dwelling, which is roughly the same height as the top of the Bakers’ first-floor windows. Relying on my own arboricultural expertise, I find that pruning the trees to fence height would leave only woody parts that would remain unattractive. Pruning to the height of Mr Choi’s dwelling would not remove the sunlight obstruction.
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It seems reasonable for the Bakers to expect some sunlight access to windows on both levels of their dwelling. They once had access to this sunlight. The trees were planted and have grown to obstruct sunlight during the period the Bakers have lived here. Reducing the trees’ height to the level required to restore sunlight access would severely impact the trees’ amenity and life expectancy – they would no longer provide the benefits that Mr Choi wants. Therefore orders will be made to remove the trees. To prevent such an obstruction recurring, a further order will limit the height of any replacement planting along this boundary.
Orders
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As a result of the foregoing, the Court orders:
The application is granted to the extent of the following orders.
The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the trees to no more than 300 mm above ground level within 30 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The Respondent is to provide the Applicants with at least 2 days’ notice of the works.
The Applicants are to provide any access required to complete the works during reasonable hours of the day.
Any new hedge planting on the Respondent’s property along this part of the common boundary is to be maintained by the Respondent at a height no greater than 2 metres.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 28 March 2022
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