Dempsey v Cignetti

[2023] NSWLEC 1224

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dempsey v Cignetti [2023] NSWLEC 1224

Hearing dates:

2 February 2023

Date of orders:

12 May 2023

Decision date:

12 May 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) comprising the respondents’ northern boundary hedge to a level equivalent with the height of the bottom of the floor of the applicant’s balcony.

(2) During July of 2025, and during July of every second year thereafter, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Leyland Cypress comprising the respondents’ northern boundary hedge to a height approximately 150 mm above the height of pruning in Order 1. This will restrict subsequent maintenance pruning to small regrowth.

(3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access be required to prune the top of the hedge from within the applicant’s property, so as to comply with orders (1) or (2), or to remove debris, the applicant shall provide all reasonable access to the respondents, or arborists, who hold all appropriate insurances, who the respondents employ to comply with orders (1) or (2), upon receipt of at least 72 hours emailed notice from the respondents.

(5) The works shall be completed during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – are views severely obstructed – balancing of views and privacy – pruning ordered

Legislation Cited:

Interpretation Act 1987

State Environmental Planning Policy (Biodiversity and Conservation) 2021

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Randwick Development Control Plan 2013

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

Safe Work Australia: Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Michele Louise Dempsey (Applicant)
Joanne Cignetti (First Respondent)
Remo Cignetti (Second Respondent)

Representation:

M Dempsey (Self-represented) (Applicant)
J Cignetti (Self-represented) (First Respondent)
R Cignetti (Self-represented) (Second Respondent)

File Number(s):

2022/334179

Publication restriction:

Nil

Judgment

Background

1. Michele Dempsey, the applicant, purchased her top floor south facing Maroubra apartment in 2009 The three-storey apartment block in which the applicant’s dwelling is located shares a side boundary with the respondents, Joanne and Remo Cignetti. Ms Dempsey’s application diagram shows both the common boundary and the southern wall of the applicant’s apartment block with an east-west orientation, and there is a concrete apron, about 3.5 metres (m) wide, in between.

2. Upon her occupation, Ms Dempsey enjoyed views across a wide arc from east to south from her south side balcony and adjacent dining area, kitchen, and from her bathroom and laundry. The views included ocean, Maroubra Beach, and district landforms.

3. There is an apartment block west of the respondents’ property in addition to the applicant’s apartment block north of the respondents’ land. In 2003, the respondents planted Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) trees adjacent and parallel to their northern, western, and southern boundaries to establish privacy in their back yard.

4. The trees subject to Ms Dempsey’s application are eight Leyland Cypress (the trees), planted along the respondents’ northern boundary. A dilapidated timber boundary fence, about 1.8 m high separates the properties.

5. The applicant claims that the trees were about fence height when she occupied her dwelling in 2009. Tenants leased the applicant’s property until 2019, after which Ms Dempsey re-occupied her dwelling. Over the intervening years the Cypress trees grew taller and broader, until the applicant now says that the trees obstruct almost all views from her balcony, and from windows of her kitchen, dining room, bathroom, and laundry.

6. In 2019, the applicant approached the respondents as a representative of the Strata Owners’ Body Corporate to request pruning of the trees. The applicant’s Strata Manager next wrote to the respondents, requesting pruning of the trees’ height as well as foliage overhanging the Strata Owners’ land beyond the common boundary. The respondents refused to prune the trees’ height but granted permission for pruning of foliage overhanging the boundary, at the Strata Owners’ expense. Contractors completed such pruning for the Strata Owners.

7. On 2 June 2022, the applicant’s Strata Manager sent the respondents an identical request, and emphasised the trees’ negative impact on resident’s views, sunshine, light, warmth and breezes. Again, the respondents refused pruning to reduce height, but granted permission for pruning of foliage overhanging the boundary, at the Strata Owners’ expense.

8. Consequently, Ms Dempsey made an application to the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), proposing that the Court grant the following (summarised) Orders:

1. The respondents, at their expense, shall reduce the height of the Leighton Green conifer hedge from their current four-storey height to a height equivalent to two-storeys (about 4 m, or the height of the respondents’ roof peak).

2. The respondents, at their expense, shall prune foliage of the hedge overhanging the common boundary back to the common boundary line.

3. If possible, the respondents, at their expense, shall remove the Leighton Green conifer at the eastern end of the row, closest to the respondents’ house.

9. There are windows along the southern side of each floor of the applicant’s apartment block and the respondents are very concerned about overviewing of their back yard and the rear of their house from apartment balconies and windows, should intervention with the trees be ordered.

Framework

10. The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views, or, of sunlight to windows of the applicant's 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

11. Both parties attended the onsite hearing and I bring my own arboricultural expertise to the matter.

12. Though the applicant had the impression that there were seven Leyland Cypress along the respondents’ northern boundary, the site inspection revealed eight Leyland Cypress trees fairly evenly spaced along a row about 11 m long, and a small Hibiscus between two of the conifers. The height of the trees had not been pruned in the past, and they were about 10 m tall.

13. The respondents’ house is located close to the common boundary, with most of it positioned forward of the front of the applicant’s apartment block. The foliage of the last two Leyland Cypress at the eastern end was enveloping the house’s north-west corner.

14. From the applicant’s balcony, adjacent to her living areas, the foliage of the trees created a dense green wall, through which one effectively could not see. Water and landscape views were available across a relatively narrow arc towards the east but views further south and around to south-west were obstructed by the trees.

Jurisdictional requirements

15. 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?

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

17. 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).

18. The respondents confirmed that they planted the trees along their northern boundary. The trees were about 10 m tall, and therefore, s 14A(1) of the Trees Act is satisfied for this hedge.

19. 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.

20. The applicant has satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land, and also supplied evidence confirming lodgement of the application documents with Randwick City Council.

21. Section 14D of the Trees Act details the Court’s jurisdiction to make a broad range of orders.

22. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

23. The application included a copy of the Strata Manager’s 2022 letter, and the respondents did not contest the applicant’s version of contact by the applicant and the Strata Manager in 2019. I am thus satisfied that the applicant has met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that 14E(1)(a) of the Trees Act is engaged

24. The next step is to assess the severity of the obstruction of sunlight to the applicants' windows, and views from the applicants' dwelling, as a consequence of any or all of the trees in the hedge.

25. 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.

Is the obstruction of sunlight severe?

26. In a submission, dated 9 January 2023 (the respondents’ submission), the respondents claimed that the applicant cannot receive direct sunlight to her apartment at any time of the day, because it faces south, (thus) “There is no obstruction of sunlight to any window of a dwelling”. The respondents also included four photographs, taken facing west from the eastern frontage, which, though not time or date stamped, were said to show the applicant’s south side apartment block wall and the trees, at intervals between midday and 7pm. The photographs were apparently taken in summer, as there was still ample light at 7pm.

27. I largely concur with the respondents. Though sunlight would be scarce in the applicant’s dwelling, this does not result from the trees.

28. Shadow diagrams showing midday in summer and winter were included in the respondents’ submission. In winter, when the sun’s path is in the northern sky, long shadows are cast south of the applicant’s apartment and thus her windows would receive no sunlight. At midday in summer, when the sun’s arc passes slightly to the north, the shadow diagram displays narrow shadows cast southward by eaves above the veranda and all windows.

29. The shadow diagrams also show that the applicant’s dwelling and windows face about 10-15 degrees west of south, rather than due south. Consequently, some of the applicant’s windows would likely be exposed to summer sunlight in the late afternoon, and the respondents’ photographs confirmed this. Sunlight may also impact glass in an east facing door to the balcony in the morning in summer.

30. Nonetheless, foliage of the trees is located at least 2 m south of the applicant’s dwelling and in Sydney, due to its location far south of the tropic of Capricorn, the trees cannot cast shadows towards the north. This is consistent with the respondents’ photographs.

31. The jurisdiction of the Trees Act, at s 14(E)(2)(a)(i), is restricted to obstruction of “sunlight to a window of a dwelling situated on the applicant's land”. Little sunlight reaches the applicant's south side wall, and the applicant's recessed windows receive even less. Given the trees location and the orientation of the applicant’s windows, I was not satisfied that the trees were obstructing sunlight to windows of the applicant's dwelling, and therefore, s 14(E)(2)(a)(i) of the Trees Act is not engaged.

Is the obstruction of views severe?

32. The applicant claimed that the hedge severely obstructs views from her balcony, and from windows of her kitchen, dining room, bathroom, and laundry.

33. The respondents acknowledged that the trees blocked Ms Dempsey’s view but submitted that “no one owns a view” and that the respondents’ views had also been obstructed, by street trees.

34. The Interpretation Act 1987 permits me to refer to relevant material to assist in interpreting the Trees Act. In this instance, I consider the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (‘the Review’) to assist with interpreting “severely obstructing a view” (s 14E(2)(a)(ii)). On page 34-35 the Review expresses the intended scope of Part 2A of the Trees Act (with my emphasis):

“Strictly limited scope

Given the environmental and other benefits of urban vegetation, and the fact that this would be a new procedure, it is preferable that the circumstances in which a person could apply for orders in relation to a hedge should be limited to the most clearly problematic cases.

….

The Court would only have the power to hear matters regarding:

• hedges which are both high, and similar to a wall in their visual effect.

• hedges which affect people’s homes (rather than their gardens or other structures on their property).

• cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if ‘enjoyment of property has been severely affected by a neighbour’s trees blocking out sunlight’ or ‘enjoyment of property has been severely affected by a neighbour’s trees blocking out a view’.

• cases where the applicant themselves has lost the light or view. 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.

• hedges which are directly next door (not one or two properties over).”

35. All these emphasised elements apply to the respondents’ hedge, which mimics a tall, impenetrable wall at close proximity to the applicant’s dwelling.

36. The Court has often also referred to a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and I will apply this planning principle in assessing the severity of the applicant’s view obstruction.

37. The first three steps of a four-step process established in Tenacity are considered relevant to Part 2A of the Trees Act. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained – views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected – the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

38. In applying the first step from Tenacity to this hedge, the obstructed views contain ocean, whole views of Maroubra Beach, and district landforms, and include the interface between land and water, all of which are highly valued.

39. With respect to the second step, the applicant’s desired views are gained across an arc from east to south, which are mainly side views across the common side boundary and over the respondents’ dwelling, where “the expectation to retain side views and sitting views is often unrealistic.”

40. Based on the third step of Tenacity, the applicant’s nominated views from the balcony, kitchen and dining room shall be prioritised, while those from the bathroom and laundry are assigned less significance.

41. Considering the views both quantitatively and qualitatively, I am thus satisfied that the respondents’ hedge severely obstructs views from nominated viewing locations available from the applicant’s dwelling and is depriving the applicant of reasonable amenity.

42. Consequently, s 14E(2)(a)(ii) of the Trees Act is engaged.

43. As s 14E(2)(a)(ii) is met for the hedge, due to the severe obstruction of views from a dwelling, there is a need to consider the balancing of interests required by 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.

44. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required, as follows:

45. Section 14F(a) considers the location of the trees, which line the adjacent common boundary and extend across all the applicant’s viewing locations.

46. As shown in a photograph provided by the applicant and based on the estimated growth rate of the trees, the views now obstructed were available at the time the applicant purchased the property (s 14F(b)) and have grown to a height of about 10 m since that time (s 14F(c)).

47. The respondents claimed that the trees were subject to State Environmental Planning Policy (Biodiversity and Conservation) 2021 and Pt B5 of Randwick Development Control Plan 2013 (DCP) but this is not the case. Under the DCP, Cupressocyparis leylandii is specifically exempt from the requirement to gain Council permission for removal (or pruning), as is the case in DCP’s of many other Council’s that manage conflict between residents’ trees and water views (s 14F(d)).

48. The primary reason for this DCP exemption is that Leyland Cypress trees are ideal for use as hedges and wind protection on rural properties but are infamous for causing obstruction of views and sunlight in urban areas, because of their foliage density, rapid growth rate, and potential to reach about 20 m in height.

49. The trees have no historical, cultural, social, or scientific value, and being exotic, make only a minor contribution to the local ecosystem and biodiversity (s 14F(f),(g)).

50. The hedge softens the landscape between the built form of the dwellings, particularly the tall stark side wall of the applicant’s apartment block. They also provide public amenity as they are highly visible from the street (s 14F(h),(i)).

51. Section 14F(k) considers the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees. Though the trees are about 20 years old, this species can normally be pruned relatively often to maintain height without unduly affecting health or function. Having said this, live foliage provides carbohydrates for all essential tree functions, thus any pruning reduces photosynthetic potential, and causes stress.

44. Therefore, to minimise tree stress, the extent of pruning should ideally be minimised and the smaller and younger the stems that are pruned, the greater the likelihood of persistent future regrowth. Similarly, the longer the interval between pruning events, the more likely are the trees to replenish storage reserves.

45. The hedge makes a significant contribution to the respondents’ privacy, given the size and position of the applicant’s dwelling, and sightlines between the two dwellings. It also protects from sun and wind (s 14F (l)).

46. There is nothing, other than the trees, contributing to the applicant’s view obstruction (s 14F (m)).

47. From the applicant’s balcony, water and landscape views remained available towards the east, but views across an arc from east south-east, southward and around to south-west, which represent at least 80% of the applicant’s potential water and landscape views, were obstructed by the trees from the balcony and all windows of the applicant’s dwelling (s 14F(q),(r)).

48. The trees had been determined as not presenting a particular fire risk, and I concur with this finding. Finally, though people have no right to a view, as claimed by the respondents, the circumstances of the applicant’s view obstruction satisfy the limited jurisdiction of Pt 2A of the Trees Act, whereas Council trees, which obstruct the respondents’ view, are not covered by the Trees Act (s 14F (s)).

Conclusions

57. Whist acknowledging that Leyland Cypress is one of the few species that could provide the respondents with privacy from oversight from residents in multi-storey apartment blocks on two boundaries, the respondents’ hedge has grown to a height where it severely obstructs views from the applicant’s dwelling and severely affects the applicant’s amenity. The obstructed views were available to Ms Dempsey at the time she purchased the property.

58. Most of the applicant’s desired views can be recovered by pruning the height of the hedge without significantly compromising the respondents’ highly valued privacy. Further, because the applicant’s apartment is on the top floor, the required pruning can mainly be restricted to relatively small, young stems.

59. Consequently, s 14E(2)(b) of the Trees Act is engaged, as 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.

60. Notwithstanding this species’ overall hardiness and tolerance of pruning, sudden loss of foliage stresses all trees. Accordingly, no orders will be made for pruning of foliage overhanging the common boundary. In the context of this application, this overhanging foliage is irrelevant to obstruction of views or sunlight, and there is no legal imperative requiring the respondents to maintain such overhanging foliage. The less often foliage is pruned, the better for tree health.

61. For the same reason, and to minimise the respondents’ maintenance costs, repeat pruning shall be ordered at two yearly intervals, with consideration of the applicant’s estimate of 600mm/ year for the hedge’s growth rate.

62. Had the applicant’s dwelling been located on a lower floor, however, where severe pruning required to regain views would have placed greater demands on tree health and resilience and where the respondents’ privacy would be significantly compromised by oversight from top floor balconies and windows, the balancing exercise required in s 14E(2)(b) of the Trees Act would likely have been more contested.

63. The applicant’s proposed order to have the Leyland Cypress tree at the eastern end of the row removed, which she extended to two east end trees within her application, is not justified. These trees soften the appearance of the respondents’ dwelling and protect their rear yard from tunnelling winds. They also provide public amenity, and their removal may have negative impacts on the hedge’s remaining trees, particularly the newly exposed residual east end tree which would likely have sparse foliage and may struggle to reshoot.

64. Though Ms Dempsey based her proposal for tree removal on concern about future loss of views, this issue largely can and shall be resolved by pruning. Given the respondents’ reasonable concerns about maintaining and maximising privacy, it is neither appropriate nor necessary to order removal of either east end Leyland Cypress.

Orders

65. The orders of the Court are:

1. Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) comprising the respondents’ northern boundary hedge to a level equivalent with the height of the bottom of the floor of the applicant’s balcony.

2. During July of 2025, and during July of every second year thereafter, the respondents, at their expense, shall employ AQF level 3 qualified arborists, with all appropriate insurances, to prune the eight Leyland Cypress comprising the respondents’ northern boundary hedge to a height approximately 150 mm above the height of pruning in Order 1. This will restrict subsequent maintenance pruning to small regrowth.

3. The pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. Should access be required to prune the top of the hedge from within the applicant’s property, so as to comply with orders (1) or (2), or to remove debris, the applicant shall provide all reasonable access to the respondents, or arborists, who hold all appropriate insurances, who the respondents employ to comply with orders (1) or (2), upon receipt of at least 72 hours emailed notice from the respondents.

5. The works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 12 May 2023