Gulli v George

[2023] NSWLEC 1328

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gulli v George [2023] NSWLEC 1328

Hearing dates:

20 March 2023

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree’s trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees growing adjacent to the common boundary and north of the Avocado tree’s trunk (Hedge 2) to a height no higher than 3.3 metres above natural ground level, and prune all foliage of both Hedge 1 and Hedge 2 that is encroaching beyond the common boundary into the applicant’s property, back to the common boundary line, and remove all resultant debris from the applicant’s property.

(2) The contractors who complete the works specified in order (1) shall be arborists, horticulturists, or landscape gardeners, with Australian Qualification Framework (AQF) level 3 qualifications, who hold all appropriate insurances.

(3) During April 2024, and during November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall have contractors who satisfy the requirements of order (2), undertake works as specified in order (1).

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

(5) Should access to the applicant’s property be required to undertake the pruning works and debris removal, the applicant shall grant such access to the respondents’ contractors who satisfy the requirements of order (2), upon receipt of at least 48 hours’ emailed notice of the date and approximate start time of the works.

(6) The tree pruning works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – one tree not part of hedge – severe obstruction of sunlight to one window – pruning ordered

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2 ss 7, 10, Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry v Olsson [2010] NSWLEC 1302

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Steber v Job [2019] NSWLEC 1308

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), Attorney General, November 2009 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Marie Gulli (Applicant)
Kimble George (First Respondent)
Patricia George (Second Respondent)

Representation:

M Gulli (Self-represented) (Applicant)
P George (Self-represented) (Respondents)

File Number(s):

2023/7556

Publication restriction:

Nil

Judgment

Background

1. Commissioner: Ms Gulli, the applicant, owns and occupies a property in Barden Ridge which shares a rear boundary with the respondents, Mr and Ms George. The orientation of the common boundary (boundary) is about 10 degrees east of north to about 10 degrees west of south. The applicant’s land is west of the respondents’ land, and the rear of the applicant’s dwelling is not parallel with the boundary but instead faces about 35 degrees south of east. Ms Gulli occupied her property in 2014 while the George’s purchased their property prior to 2005.

2. In Exhibit C, Ms Gulli provided comparative photographs from July 2014, prior to her property purchase, and 3 February 2023, both taken from a similar position at the northern end of her rear yard. In 2014, it would have appeared to the applicant that the only tree growing near the boundary on the respondents’ land was an Avocado, then about 5.5 metres (m) tall.

3. A photograph provided by the respondents and date stamped 19 January 2015, showed Viburnum trees, which the respondents had planted along the boundary in 2012, had grown to about 1.5 m tall, They were not yet visible to the applicant as they were obstructed by the 1.8 m tall metal panel boundary fence.

4. By 2023, the Viburnum trees had grown strongly on either side of the Avocado, such that the respondents’ trees formed an uninterrupted screen of dense foliage along the boundary. The trees’ foliage also encroached considerably over the boundary. Cumulatively, the trees’ foliage significantly impacted the availability of sunlight to the applicant’s property.

5. The dispute, and the polarisation of the parties’ proposals for resolution, was exacerbated by conflicting partisan advice about the likely impact of pruning, and the likelihood of potential damage to the applicant’s fence, pipes, and paving, which the parties separately received from one arborist.

6. Having failed to reach a remedy for the obstruction of sunlight to her property, Ms Gulli submitted an application, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), in which she proposed the following (summarised) orders:

1. Removal of the Avocado tree (T1) and the Viburnum hedge.

2. Alternatively, pruning of T1 and the hedge to a height lower than 3.6 m, and ongoing pruning of all nominated trees to maintain them below a height of 3.6 m.

Onsite hearing: observations and submissions

7. The hearing occurred onsite on the afternoon of a cloudy day with intermittent light rain. The absence of sunlight, and the fact that the rear of the applicant’s dwelling faced south-east and thus could only receive morning sunlight, made the onsite assessment of sunlight obstruction challenging.

8. Ms Gulli was self-represented, and Ms George represented the respondents. An initial inspection from the respondents’ rear yard displayed that 15 Viburnum trees had been planted about 1 m apart and were growing in a row along the boundary, on both sides of the Avocado tree.

9. The Viburnum trees were evergreen, with large, dense foliage, and an inspection of extension growth of accessible stems showed that they had been growing vigorously. The same species had been planted along the respondents’ side boundaries such that the trees surrounded the respondents’ relatively large lawn and provided significant privacy.

10. The applicant’s rear yard was relatively wide but shallow, resulting in the respondents’ dense 6.5 m tall hedge feeling imposing and overbearing. Foliage encroachment of about 1 m beyond the boundary exacerbated this perception. The kitchen window (W1) was located at the northern end of the applicant’s dwelling while living room window (W2) was located at the back of a deep recess at the dwelling’s southern end.

Respondents’ alternate orders

11. The respondents proposed the following alternate orders:

1. Reduce the height of the Viburnum hedge to the eaves of the applicant’s property and maintain it at that height without reducing the size of the Avocado tree, as the landscaping even at its current height doesn’t cause severe obstruction of sunlight to the windows, W1 and W2, of the applicant’s dwelling.

2. Trim all foliage overhanging the applicant’s side to the fence line and remove all cuttings, leaving the courtyard clean.

3. All at the respondents’ expense, OR

4. Reduce the height of the Viburnum hedge to 4.5 m above ground level, and maintain it at that height, which was agreed to by the applicant.

5. The Avocado tree remains at its current height, for its size doesn’t need to be reduced to remedy, restrain, or prevent a severe obstruction of sunlight to the windows

6. Trim all foliage overhanging the applicant’s side to the fence line and remove all cuttings, leaving the courtyard clean.

7. All at the respondents’ expense.

Jurisdictional requirements

12. The application is made under Pt 2A of the Trees Act, which provides a limited jurisdiction and does not assume one should have a right to sunlight or views. 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 a dwelling, or of views from the applicant’s dwelling. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.

13. Section 14A(1) states:

(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).

14. Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land (s 14B(b)), if the obstruction occurs as a consequence of trees to which this Part applies. The trees must be situated on adjoining land.

15. Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located.

16. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

17. Section 14E addresses matters of which Court must be satisfied before making an order, as follows:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

18. Section 14E(2) of the Trees Act is particularly significant. Section 14E(2) states:

(2) The Court must not make an order under this Part unless it is satisfied:

(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, and

(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.

19. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

Do the trees form a hedge?

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

21. 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).

22. The trees’ height had apparently not previously been pruned and they had grown to a height of about 6.5 m. The respondents noted that they had planted the Avocado tree in 2007, and the Viburnums in 2012. The Viburnum trees had been planted to form a hedge. Wisdom v Payn [2011] NSWLEC 1012 says, at [45]; “[…] the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge”. The arrangement of the Viburnum trees meets this description. Therefore, I am satisfied that s 14A(1) of the Trees Act is engaged.

23. 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:

…

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

24. Ms Gulli owns her property, the trees apply to part 2A of the Trees Act, and are situated on adjoining land. Therefore, s 14B of the Trees Act is engaged.

Did the applicant make a reasonable effort to reach agreement?

25. Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated. As is often the case with protracted disputes between neighbours about trees, the key issues in contention had been clouded by emotions arising from each parties’ response to the nature and content of the others parties’ proposals for resolution. Considering that this dispute began in 2017, the parties’ positions have unsurprisingly varied over time and these changes have then been subject to aspersions of inconsistency.

26. The respondents claimed that the applicant’s prior removal of a large tree from each of the northern and southern ends of her back yard conflicted with the reasonableness of the applicant’s desire for intervention with the respondents’ trees. The respondents at least implied that the removal of these two trees reduced the negative impact of the respondents’ Viburnum hedge on the applicant’s amenity.

27. While the removal of healthy, relatively large trees is always regrettable, the applicant’s removal of both trees, particularly the tree removed from the yard’s northern end, would likely have increased the availability and penetration of sunlight to the applicant’s house and yard. The absence of both trees would have likely reduced the applicant’s maintenance burden. This appeared consistent with the applicant’s statement at question 4 of her Tree Dispute Claim Details (Exhibit B); “I purchased my home in 2014 because it was bright and airy and had a very low maintenance paved courtyard for me to manage on my own”.

28. Notwithstanding this, the detail of the parties’ negotiations is largely irrelevant to the Court, other than the contribution of negotiation detail to the requirement for the applicant to make a reasonable effort to reach agreement, and thus satisfy s 14E(1)(a) of the Trees Act.

29. The applicant initially approached the respondents in 2017 and requested pruning and maintenance of the hedge at a height of 3.5 m, along with pruning of encroaching foliage, to increase light in the applicant’s house and yard but also to consider the trees’ contribution to the respondents’ privacy. This is not disputed by the respondents.

30. Both parties detailed ongoing negotiations over subsequent years and Ms Gulli provided evidence of undertaking mediation with Mr George, albeit unsuccessful, that the applicant organised through a Community Justice Centre. When negotiations reached an impasse, the applicant provided the respondents with at least 21 days’ notice of her application under the Trees Act.

31. This evidence shows that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated such that s 14E(1)(a) of the Trees Act is engaged, and that the applicant has given notice of the application in accordance with s 14C, such that s 14E(1)(b) of the Trees Act has been satisfied.

Is the obstruction of sunlight severe?

32. The next step is to assess the severity of obstruction of sunlight to nominated windows of the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

33. Section 14E(2)(a)(i) 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.

Obstruction of sunlight to a window of a dwelling

34. Ms Gulli claimed that sunlight to her W1 and her W2 was severely obstructed by the respondents’ hedge.

35. At the onsite hearing, Ms George provided shadow diagrams, prepared by Peter Connor of Peter Connor Building Consultants, which showed the shadows cast by the hedge at its current height of 6.5 m, at hourly intervals between 9 am and 3 pm inclusive, as at 21/6/2022 and 21/12/2022. The shadow diagrams showed that the applicant’s dwelling and windows faced about 35 degrees south of east, and indicated that W1 and the rear of the dwelling near W2 would be shaded by the applicant’s dwelling after about 10am at the winter solstice and about 12:30 - 1pm at the summer solstice.

36. Based on these diagrams, Ms George claimed that the primary factors causing obstruction of sunlight to the applicant’s nominated windows was not the hedge but was the aspect of the rear of the applicant’s dwelling and the deep covered recess to W2.

37. In the ‘Respondents’ Evidence and Alternative Orders’ (Exhibit 1), dated 28 February 2023, the respondents included a detailed shadow analysis report prepared by Peter Connor, with shadow diagrams, again at hourly intervals between 9 am and 3 pm inclusive, as at 21/6/2022 and 21/12/2022, but in this instance, based on a hedge height of 4.5 m.

38. Mr Connor’s report included his qualifications and experience, his adherence to the Expert Witness Code of Conduct in Sch 7 of the Uniform Civil Procedure Rules 2005, and detail on procedure of shadow assessment.

39. Analysis of shadowing is commonly conducted at intervals between 9 am and 3 pm inclusive, as at 21/6/2022 and 21/12/2022, for inclusion in support of development applications (DA’s) submitted to local councils. In some cases, the Court has sought guidance from shadowing provisions in Council Development Control Plans related to DA assessment when determining the severity of obstruction of sunlight to windows of dwellings under the Trees Act.

40. Though question 4 of Exhibit B encourages applicants to include shadow diagrams when claiming a severe obstruction of sunlight to a window of a dwelling, Ms Gulli did not do so, thus the respondents’ shadow diagrams are useful. Nonetheless, in determining the severity of obstruction of sunlight, the Court is not restricted to consideration of shadow diagrams as a primary element, nor to the period of the day assessed by Mr Connor.

41. It is relevant to note Steber v Job [2019] NSWLEC 1308 (Steber) which, at [36]-[39], says;

[36] When assessing sunlight obstruction, the Court does not limit itself to the situation as found ‘at the time of the hearing’. Trees might obstruct sunlight from the north only, during winter, but the hearing might take place during summer. Afternoon obstruction of sunlight might not be observed at a morning hearing. Nevertheless, the Court has made orders in these situations. The Court considers that, given the existing situation, a severe obstruction is something that has occurred and will most probably occur again.

[37] I now read the words ‘are severely obstructing’ to be a state that, once reached, might continue to apply or recur. If a tired worker tells her colleague that her neighbour’s dogs are disturbing her sleep, she is not saying it is happening at that moment; rather, she is describing an ongoing state of affairs that affects her life at present. It has happened, recently, and is likely to happen again, soon. Dictionaries describe this use of the present progressive tense as ‘continuous’.

[38] In the case of more than one possible interpretation of an Act’s provisions, the Interpretation Act 1987 (NSW) (‘the Interpretation Act’), at s 33, favours an interpretation that promotes the Act’s underlying purpose (my italics for emphasis):

“33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”

[39] The Interpretation Act then provides at s 34 more detail regarding when, why and how extrinsic material might be used to shed light on the meaning of a provision in an Act. To assist here, I refer to the Attorney General’s 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) and the 2013 Review of Part 2A of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (High hedge provisions) (‘the 2013 Review’). The objective of the Trees Act, quoted in both reviews, is to provide “a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours”.

42. For assistance with interpreting “severe obstruction of sunlight to a window of a dwelling” (s 14E(2)(a)(i)), it is pertinent to consider the scope of the Trees Act. This is found at Part 4 page 35 of the 2009, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Review), as follows:

“[…] The Court would only have the power to hear matters regarding (with my emphasis):

• 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).”

43. In this situation, considering the limitations to sunlight access that result from the aspect of the rear of the applicant’s dwelling, the period between 9 am and 3 pm is not the most relevant. In the absence of the hedge, sunlight would be cast onto W1 and W2 long before 9 am, particularly in summer, from the time the sun rose above the boundary fence.

44. Though I am not an expert in the interpretation of shadow diagrams, after many years determining applications under the Trees Act, I have considerable experience assessing sunlight obstruction. Based on the site factors and the shadow diagrams, I concluded that autumn, winter, and spring are likely to include extensive periods when the Viburnum hedge is obstructing sunlight to W1, from early to mid-morning when kitchens are frequently used, and a sunny kitchen is usually highly valued. This absence of sunlight until about mid-morning would reduce both light and potential natural warming during the cooler period of the year from mid-autumn to mid-spring, when both light and warmth are usually particularly important.

45. Considering the third dot point in the scope of the Review, above at [42], includes “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”, each of the five elements of the Tree Act’s scope are satisfied because the obstruction of sunlight by the respondents’ hedge severely affects the applicant’s enjoyment of property.

46. Consequently, given the current height of the hedge and its close proximity to the dwelling, and especially to W1, I am satisfied that sunlight to W1 is severely obstructed by the hedge for extended periods of the year.

47. The obstruction of sunlight to W1 as a result of the hedge is not devastating, but it is severe, and this determination, in the context of the site circumstances, satisfies the underlying purpose of the Trees Act. Therefore, s 14(E)(2)(a)(i) of the Trees Act is engaged.

48. I accept the respondents’ submission that the covered recess extending about 2 m north-west of the rear building line to W2, and the south-easterly aspect of the rear of the dwelling, are the primary factors obstructing the penetration of sunlight onto W2, and into the applicant's dwelling. Although the absence of the hedge would allow sunlight to reach W2 and the applicant’s living area for the hours until mid-morning, I was not satisfied that the hedge was severely obstructing sunlight to W2.

49. 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”. Though the hedge would likely significantly obstruct sunlight to the applicant’s courtyard for much of the year, the jurisdiction of the Trees Act does not extend to obstruction of sunlight to yards. Nonetheless, I accept the applicant’s claim that extensive shadowing caused by the hedge’s considerable height and density would likely cause a major negative impact to her amenity.

50. As I have determined that the obstruction of sunlight to a window of a dwelling, as a consequence of any or all of the trees in the hedge, constitutes a severe obstruction, thus engaging s 14E(2)(a), the Trees Act requires me to consider the balancing of interests in s 14E(2)(b). This states:

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

…

(2)(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.

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

1. The trees are located adjacent to the common boundary and the boundary is located in close proximity to the applicant’s dwelling (s 14F (a)).

2. The Viburnum trees are likely to be quite tolerant of regular pruning, especially if they are given supplementary slow, deep, weekly watering during dry summers (s 14F (k)).

3. Section 14F(l) considers, amongst other elements, the contribution of the trees to privacy. The respondents noted that privacy was very important in their back yard, and in the various rooms at the rear of their house. While the Viburnum trees south of the Avocado tree provide privacy for the respondents’ upstairs rooms from the applicant’s upstairs windows, the Viburnum trees north of the Avocado need not be as high to provide privacy for the respondents’ upstairs rooms, because the applicant has no upstairs windows north of the Avocado from which to gain potential oversight of the respondents’ property.

Other findings

Is the avocado part of the hedge?

52. To clarify whether the Avocado should be considered an individual tree or part of the hedge, I consider Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), where Preston CJ provides commentary in an unsuccessful ‘hedge’ appeal under the Trees Act. At [43], his Honour, discussing the language of s 14A(1)(a), says (my italics for emphasis):

“Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.”

53. This case has similar elements. The respondents’ photograph, date stamped 19 January 2015, showed that the Avocado tree was semi-mature and about 5.5 m tall, while the Viburnum trees averaged about 1.5 m tall. Based on the arboricultural expertise I bring to the Court, the trees’ relative heights and appearance in the respondents’ photograph is consistent with the respondents’ claim that the Avocado tree was planted in 2007 while the Viburnum trees were planted in 2012.

54. Satisfaction of s 14A(1)(a) of the Trees Act requires an intention “so as to form a hedge” at the time of planting. Therefore, substituting the tree species used in this case into the final sentence of [43] of Johnson; the Avocado tree “cannot later acquire the status of being planted so as to form a hedge by the” Viburnum trees “being planted to form a hedge in proximity to the Avocado tree”.

Can orders be made because the Avocado severely obstructs sunlight to a window?

55. Considering the changing location of shadows as the height and path of the sun’s arc alters throughout the year, I am satisfied that the Avocado tree does severely obstruct sunlight to W1 for sustained periods of the year.

56. Unlike hedges, however, the Tees Act provides no jurisdiction for obstruction of sunlight by individual amenity trees. To clarify, I note the first Conclusion in Part 4 page 34 of the Review, which says;

“It would not be appropriate, as some submissions requested, to create a power for a Court or a Council to order removal or pruning of an individual tree on the sole grounds that it obscures a view from the applicant’s land, or blocks light to their land. As noted above, all trees do both of these things, to a greater or lesser extent.”

57. Consequently, I have no powers to order intervention with the Avocado tree on the sole grounds that it severely obstructs sunlight to a window.

58. I also agree with arborist’s advice to the respondents, noted at page 14 of Exhibit 1, that pruning the height of the Avocado would “encourage growth”. The health and structure of the Avocado would likely be negatively impacted by such pruning and resultant epicormic (sucker) growth would likely be rapid and may result in a taller tree than would occur with undisturbed natural growth.

Damage due to Avocado tree

59. The applicant did not propose orders based on damage or injury, available under s 7 of Pt 2 of the Trees Act and nor did she include a ‘Tree Dispute Claim Details’ (Damage and Injury) form (Form G) which is required to accompany an application for proposed orders under Pt 2 of the Trees Act. Consequently, no orders can be made to remedy damage or risk of injury.

60. Nonetheless, I consider it useful to respond to the applicant’s claims of damage in her written and oral submissions to inform both parties of relevant matters, should a future need arise for an application under Pt 2 of the Trees Act.

61. Ms Gulli noted minor fence uplift, cracking to stamped paving and potential damage to stormwater pipes, said to be located close to the Avocado tree. While a tree need only be a cause of damage to allow the contemplation of orders under Pt 2 of the Trees Act, and even minor damage may engage s 10(2) of the Trees Act, claims of damage must be supported by evidence and a causal relationship between the tree and the damage must be proven.

62. The relationship between damage and roots may be obvious if roots are above ground, or close to the soil surface and very close to the tree, but for claims of damage to pipes by roots, root identification and/or plumbing receipts are usually required. Claims of damage by deeper roots usually require excavation to show the nexus between damage and roots. Where a claim of likely near future damage is made, the near future is defined as about 12 months. Such claims again require supporting evidence, not mere speculation. Even if a root or roots are determined as a cause of damage, tree removal is not the only available remedy. Selective root pruning may be a viable alternative. Therefore, it is prudent for both parties to conduct early investigation of possible root damage.

63. Ms Gulli noted that leaves and other debris fall or blow from the trees onto her yard, and she lamented the maintenance burden this created. In response to such claims, which are common to many applications under Pt 2 of the Trees Act, a Tree Dispute Principle was established at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker), as follows:

“It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

“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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.””

64. This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applies here with respect to all tree debris described by the applicant, observed on her land, and shown in the photographs which the applicant supplied to the Court.

65. Cleaning of stains that may arise from mould and slime associated with tree debris is also usually considered to be reasonable maintenance, as the maintenance expectation arising from Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], to include the cleaning of mould and slime.

Conclusions

66. Though the respondents claimed that the hedge, at the current height of about 6.5 m, did not severely obstruct sunlight to either W1 or W2, the shadow analysis in Exhibit 1, supporting the respondents’ claim, was based on the Viburnum trees at a height of 4.5 m. Given the respondents’ proposed alternative order (2) included maintenance of the hedge at 4.5 m tall, the respondents appeared to deem this height sufficient to satisfy their privacy requirements.

67. Considering the history and nature of the dispute over more than five years, my determination that the hedge is causing a severe obstruction of sunlight to W1, and the fact that the Viburnum trees have the propensity to rapidly increase in height, 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.

68. Having said this, the respondents’ privacy is an important consideration, and the respondents’ proposed order (2) for the hedge to be maintained at or below a height of 4.5 m is mainly reasonable. However, the form of the respondents’ proposed order is impractical as it implies that the hedge will be maintained at or below a height of 4.5 m, and likely just below this height. Given the rapid apparent growth rate of these Viburnum trees, achievement of this outcome would require very regular pruning. Due to the unpredictability of life, this pruning regularity may on occasions be hard to achieve, potentially resulting in the trees’ height exceeding 4.5 m.

69. This would likely compromise the applicant’s confidence in the respondents’ ongoing compliance with the orders and may result in the applicant applying to the Court for enforcement of orders, as would be her right.

70. To minimise unnecessary uncertainty for both parties, and, with it, the likelihood of additional conflict, orders shall be made for pruning of the hedge twice each year. The Viburnum trees south of the Avocado shall be pruned to a height of 4.3 m to consider possible oversight from the applicant’s upstairs windows. The Viburnum trees north of the Avocado which particularly impact W1, are, however, adjacent to an area where the applicant has no upstairs windows impacting the respondents’ privacy, so these trees shall be pruned to a height of 3.3 m. This height includes an allowance for regrowth between pruning events.

71. While it is more common for the Court to order annual pruning, the designated pruning height for annual pruning, would need to allow for more regrowth, and would therefore need to be about 300mm lower. As the respondents have repeatedly stressed the importance of the hedge for their privacy, biannual pruning is thus more appropriate.

72. While the respondents may prefer that their son/s undertake or assist with the pruning, working at height required for the pruning is potentially dangerous and consequences of falls may be serious. Access into the applicant’s property will likely be needed for both pruning and removal of debris, and such access requires insurance coverage. Therefore, the works shall be completed by appropriate contractors who have required insurances. When orders are made for such works, it is usually at the respondents’ expense, and there is no good reason to vary this convention.

73. Given that the trees are likely to grow most actively during spring, and late summer/ early autumn, the maintenance pruning ordered shall occur during April and November.

Orders

74. The orders of the Court are:

1. Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree’s trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees growing adjacent to the common boundary and north of the Avocado tree’s trunk (Hedge 2) to a height no higher than 3.3 metres above natural ground level, and prune all foliage of both Hedge 1 and Hedge 2 that is encroaching beyond the common boundary into the applicant’s property, back to the common boundary line, and remove all resultant debris from the applicant’s property.

2. The contractors who complete the works specified in order (1) shall be arborists, horticulturists, or landscape gardeners, with Australian Qualification Framework (AQF) level 3 qualifications, who hold all appropriate insurances.

3. During April 2024, and during November 2024, and during April and November of each subsequent year, the respondents, at their expense, shall have contractors who satisfy the requirements of order (2), undertake works as specified in order (1).

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

5. Should access to the applicant’s property be required to undertake the pruning works and debris removal, the applicant shall grant such access to the respondents’ contractors who satisfy the requirements of order (2), upon receipt of at least 48 hours’ emailed notice of the date and approximate start time of the works.

6. The tree pruning works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 27 June 2023