Hauser v Vila

[2021] NSWLEC 1546

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hauser v Vila [2021] NSWLEC 1546

Hearing dates:

16 September 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:    

(1)   Within 90 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) with all appropriate insurances to remove the conifer trees T1–T3 (see attached “Diagram A”) to ground level and to prune conifer trees T4 to T7 (see attached “Diagram A”) to a height of 5.5 metres above ground level. Stumps of trees T1–T3 are to be treated to prevent regrowth. The works are to be done in accordance with the Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’, 2016.

(2)   On reasonable notice, the Respondent is to allow access required during reasonable hours of the day for quoting on the works, and for carrying out the works, in order (1).

(3)   The exhibits are returned except for Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedges – conifers – obstruction of sunlight – whether proposed consent orders should be made – whether the sunlight obstruction is severe – whether pruning is appropriate – removal of some trees is preferable – agreement between the parties noted

Legislation Cited:

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

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Texts Cited:

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

Category:

Principal judgment

Parties:

Thomas Hauser (Applicant)
Sonia Vila (Respondent)

Representation:

T Hauser (Litigant in Person) (Applicant)
P Khoury (Solicitor) (Respondent)

Solicitors:
Khoury Lawyers (Respondent)

File Number(s):

2021/130146

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

1. COMMISSIONER: This application made by Thomas Hauser (‘the applicant’) concerned 10 trees on the neighbouring property owned by Sonia Vila (‘the respondent’). The application is made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking remedy for the obstruction of sunlight to the applicant’s windows. By the time of the hearing, the issues in dispute had narrowed and the parties proposed consent orders for trees to be pruned and maintained at specified heights. Despite this, I must still be satisfied that the Court has the jurisdiction to make those orders, and that the orders are ones the Court would find appropriate in the circumstances having considered all relevant matters: see Breen v Caronna [2008] NSWLEC 293 at [6], [7].

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicant must make reasonable effort to reach agreement with the tree owner (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicant’s dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicant’s interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F in this matter include amenity and the response of the trees to pruning.

3. If orders are made, they might be those sought by consent, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of sunlight to windows of the applicant’s dwelling.

The hearing

4. The hearing took place online via audio-visual means. I informed the parties that the Court would arrange a later onsite inspection if, at the end of the hearing, I determined it would be necessary for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that I do not require such an inspection. I bring my own arboricultural expertise and experience to making this decision.

The Court has jurisdiction to make orders for these trees

5. The respondent’s property is to the north of the applicant’s. Trees T1–T3 are three conifers planted as a hedge across the front of the respondent’s property. They obstruct morning sunlight to windows at the front of the applicant’s dwelling.

6. Trees T4–T7 are four conifers planted in the respondent’s back yard. They obstruct afternoon sunlight to a bedroom window at the back of the applicant’s dwelling. The applicant’s son works at a desk in this room.

7. The respondent did not dispute that the applicant has tried to reach some agreement on a suitable outcome. The respondent did not dispute that the trees form hedges, nor that they severely obstruct sunlight to the applicant’s windows. Relying on the adduced evidence, including the photographs accompanying the application, I accept this also. Trees T1–T3 are approximately 7 metres tall, are planted so as to form a hedge, and severely obstruct sunlight to windows of the applicant’s dwelling. Trees T4–T7 are approximately 12 metres tall, are also planted so as to form a hedge, and severely obstruct sunlight to windows of the applicant’s dwelling. Based on these findings, the jurisdictional tests at s 14E of the Trees Act are met and the Court can make orders.

8. The proposed consent orders are to reduce the height of trees T1–T3 to 3.5 metres and T4–T7 to 5.5 metres, initially at the applicant’s expense and then every two years to maintain the trees at these heights at the respondent’s expense.

9. These are not necessarily orders the Court should make. Bringing my own arboricultural expertise to this matter, I find that the proposed pruning, especially of trees T1–T3, would make the trees unsuitable for retention. The species does not respond well to pruning. The trees would be unattractive. They would be of very little if any benefit to the respondent. They would contribute negatively to the streetscape and to public amenity. In my view, there would be no gain to any party by making those orders. I gave the parties an opportunity to make further submissions on this. The respondent suggested pruning T1–T3 to 5 metres. At that height I am not sure that the applicant’s sunlight would be restored, while the pruning would still have a negative impact on the trees.

10. Trees T1–T3 do not appear to be critical for the respondent’s privacy. She has already planted other trees along her front boundary and they will replace any loss resulting from the removal of T1–T3. The crown of a large gum tree overhead provides her garden and the front of her dwelling with shade. Having balanced the very limited benefits of these three trees, the impacts of pruning on the trees, and the potential benefits to the applicants, I still find removing trees T1–T3 is preferable to pruning them. Proposed consent orders reflected the applicant’s offer to pay for the initial pruning of these trees. The cost of removing these trees to ground level should not be significantly more, so the applicant will pay for their removal.

11. Unlike trees T1–T3, trees T4–T7 grow in the respondent’s back yard where they make little or no contribution to public amenity. The respondent preferred to keep the trees, even if this reduces their amenity. The applicant was only concerned about access to sunlight. Severe pruning of these trees might not leave the trees’ dignity intact, but would have little impact on public amenity. For this reason, I will make the initial order for pruning T4–T7 as proposed in the consent orders. Orders can potentially affect future owners of the respondent’s property, so in this case, where the parties have agreed on the nature of future maintenance, I am reluctant to make that agreement the subject of Court orders. I simply note here that the respondent has agreed to maintain trees T4–T7 by pruning them every two years to 5.5 metres in height and to prune any overhanging branches to the property line.

12. The parties asked the Court to note further agreement involving other trees. The nature of any further agreement is a matter for them and not a matter for this judgment.

Orders

13. Based on the foregoing, the Court orders:    

1. Within 90 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) with all appropriate insurances to remove the conifer trees T1–T3 (see attached “Diagram A”) to ground level and to prune conifer trees T4 to T7 (see attached “Diagram A”) to a height of 5.5 metres above ground level. Stumps of trees T1–T3 are to be treated to prevent regrowth. The works are to be done in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

2. On reasonable notice, the Respondent is to allow access required during reasonable hours of the day for quoting on the works, and for carrying out the works, in order (1).

3. The exhibits are returned except for Exhibits A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

Diagram A (138033, pdf)

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Decision last updated: 20 September 2021