Day v Caithness

[2022] NSWLEC 1577

Land and Environment Court

New South Wales

Medium Neutral Citation:

Day v Caithness [2022] NSWLEC 1577

Hearing dates:

26 July 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – Review of the Trees Act – trees severely obstructing sunlight before applicants’ occupation – other causes of sunlight obstruction

Legislation Cited:

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006

Pt 2A, s 14A, 14B, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:

NSW Justice & Attorney General’s Department ‘Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)’ (November 2009)

Category:

Principal judgment

Parties:

Wendy Day (First Applicant)
Brian Day (Second Applicant)
Lee Caithness (First Respondent)
David Caithness (Second Respondent)

Representation:

W Day (Self represented) (First Applicant)
B Day (Self represented) (Second Applicant)
L Caithness (Self represented) (First Respondent)
D Caithness (Self represented) (Second Respondent)

File Number(s):

2022/122064

Publication restriction:

No

Judgment

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

Background

1. Mr and Mrs Day, the applicants, occupied their property in Forster in 2016, while the respondents, Mr and Mrs Caithness, built and occupied their property in 1995, and planted trees along their southern boundary soon after to provide privacy for their back yard, and for a 1^st floor bedroom window. The parties share a side boundary which runs roughly from west at the front to east at the rear. The applicants’ land is to the south of the respondents’ property.

2. The trees comprise a row of ten Syzygium paniculata (Lilly Pilly) (the trees), which are shown at question 2 of the Tree Dispute Claim details (Exhibit B) to be growing parallel with and adjacent to the common boundary, on the respondents’ land. The applicants noted that the trees were 6 metres (m) tall when they purchased their property, and 4.5 m in height when they lodged their application. Mr and Mrs Day nominated four windows (W1 – W4) and claim, at question 4 of Exhibit B, that the trees are obstructing 100% of their sunlight “to every window every day of every month. We get no sunlight at all. We face north and miss every bit of sun there is”.

3. As a consequence, Mr and Mrs Day submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking the following orders:

“1. We would like the 10 x 4.5 metre high Lilly Pilly trees cut down to 2.5 metres high, which will, (a) allow sunlight to come through, and, (b) stop leaves and debris from getting in our gutters because it will be below our gutter line and be easy to maintain.”

4. The respondents value the trees for the privacy they provide and for their contribution to the garden. Though Mrs Caithness acknowledged that the trees had needed pruning, she says she does not want the trees pruned further because of the negative impact on her families’ privacy, and potentially on the trees’ health and longevity. The respondents would prefer that the trees’ natural form be maintained as best as possible.

Framework

5. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of the applicants’ dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

6. The hearing took place onsite. Both parties attended, and I bring my own arboricultural expertise to the matter.

7. The trees remained in an uninterrupted row. They are healthy and appear to be growing fairly vigorously. They were planted at close and regular spacings, so as to form a hedge. Their foliage creates a wall, but, in April 2022, the trees were reduced in height to about 3 metres, and the back of the hedge was pruned clear of the gutter on the applicants’ awning, such that some filtered light passes through them. Though this was close to the 2.5 m height that the applicants sought, the Day’s continued to claim that this pruning to a height of about 3m was insufficient to satisfy their requirements.

8. The applicants’ dwelling is single storey while the respondents’ house is two-storey. There are windows along the eastern side of both levels of the respondents’ house. The respondents are particularly concerned about opening the possibility of the applicants looking into an east facing, upstairs bedroom window and into their rear yard, more generally.

9. In Exhibit B, at question 30, the Day’s claimed that they have requested pruning of the trees on many occasions, since 2017. They say that Mr Caithness “trims the trees” down to a height of 4.5 metres “and won’t go any further”, regardless of numerous requests to “cut them down to 2.5m under our awning roofline, so we can get some sunlight, maintain it from our side and stop the leaves from clogging the gutters on both the awning and the house.”

Jurisdictional requirements

10. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

Do the trees form a hedge?

11. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?

12. Section 14A(1) states:

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).

13. The evidence provided, and gleaned onsite satisfies s 14A(1) of the Trees Act.

14. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

14B Application to Court by affected land owner

(a) sunlight to a window of a dwelling situated on the applicant’s 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.

15. Section 14E(1)(a) of the Trees Act requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by the applicants provides satisfactory evidence to engage s14E(1)(a) of the Trees Act, and I am also satisfied that the applicants have given notice of the application in accordance with s 14C, such that s14E(1)(b) of the Trees Act has been engaged.

16. The next step is to assess the severity of the obstruction of view from the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

17. Section 14E(2)(a) states:

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.

18. With the trees having been pruned to about 3 m high and away from the applicants’ awning well prior to the hearing, and because filtered light penetrated through the trees, I am not satisfied that the hedge is causing a severe obstruction of sunlight to the applicants’ windows. Rather, obstruction of sunlight is primarily caused by other elements which are considered under s 14F of the Trees Act.

19. Even if I had determined the obstruction of sunlight to the applicants' dwelling as a consequence of any or all of the trees in the hedge to constitute a severe obstruction, thus engaging s 14E(2)(a)(i), the Trees Act requires me to also consider the balancing of interests in s 14E(2)(b). This states:

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

…

(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.

20. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F of the Trees Act is required.

21. Section s 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicants have owned or occupied the relevant land. At question 3 of Exhibit B, Mr and Mrs Day claimed that the trees were 6 m tall when they occupied their property in 2016, and Mrs Day re-iterated this 6 m height during her verbal submissions. The respondents claimed, however, that the height of the hedge had been about 4.5 metres upon the applicants’ occupation, but had never been as high as 6 m.

22. Regardless of the exact height, this evidence attests that the hedge height was greater than 4.5 m upon the applicants’ occupation, and this raises a key issue.

23. The Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (‘the Review’).

24. On page 39, the Review describes the scope of the Trees Act. In part, this says:

“It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase”. It is relevant to note that this Court, under the jurisdiction of the Trees Act, has consistently determined that applicants are not entitled to sunlight (or a view) which was not available when they purchased their property: see Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150.

25. In consistently applying this determination, The Court thus has no grounds to make orders to reduce the hedge to a height below 6m, based on the applicants’ submissions, or below 4.5 m, based on the respondents’ evidence. At the hearing, the hedge was about 3 m tall, so as a consequence, the Court has no jurisdiction to make orders under the Trees Act.

26. Section s 14F(l) considers, amongst other roles, the contribution of the tree to privacy, and the respondents attribute great importance to the hedge’s contribution to privacy in their back yard.

27. Section s 14F(m) considers anything, other than the trees, that has contributed or is contributing to the obstruction. Considering that the hedge height had been reduced to approximately 3 m as at the time of the hearing, I could not determine the hedge’s obstruction of sunlight to a window to be severe, even at the winter solstice, because the obstruction of sunlight to the applicants’ nominated windows was primarily caused by the applicants’ metal veranda awning, which extended from the house to the boundary, and sat above all such windows. Had this awning been absent or translucent, sunlight could have illuminated these windows.

28. Section s 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case. The issue of leaves and other tree debris accumulating on their awning and house roofs and in their gutters was a key repeated submission by the applicants in support of pruning the hedge below their awning roof line. Though this issue is not explicitly considered under Pt 2A of the Trees Act, it is addressed under Pt 2 of the Trees Act in consideration of damage, and it is appropriate to note the Court’s position here.

29. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, Preston CJ states that this is not “damage to property on the land” within s 7 of the Act, and that “leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

30. In Robson, at [56], discussing the issue of nuisance, his Honour states that “mere encroachment is insufficient to complete a cause of action.”

31. The issue of the maintenance impost from falling tree debris is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], establishes the tree dispute principle:

“…

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

32. As a consequence of this grounds maintenance expectation regarding fallen leaves, fruits, seeds, twigs, bark or flowers, onto the roofs, into gutters or onto the ground, none of the applicants’ submissions in this respect invoke the jurisdiction of the Trees Act.

Conclusions

33. While sunlight was severely obstructed to windows nominated by the applicants, this was primarily caused by a long metal awning extending from the house to the shared boundary. I was not satisfied that had the awning been absent or translucent, that the hedge alone would cause a severe sunlight obstruction.

34. Significantly, when the applicants first occupied their property, the hedge was much taller than its current height. The Review of the Trees Act in 2009, explicitly noted that “It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of purchase”. This approach has been applied consistently by the Court, and thus no orders shall be made to reduce the hedge height below 4.5 m.

Orders

35. The orders of the Court are

1. The application is refused.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 20 October 2022