Ingham v Scenna

[2016] NSWLEC 1001

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ingham v Scenna [2016] NSWLEC 1001
Hearing dates:	1 December 2015
Date of orders:	05 January 2016
Decision date:	05 January 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 41.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); zoning of land; environmental management zone; hedges; obstruction of sunlight; obstruction of views; orders for tree pruning; orders for tree removal.
Legislation Cited:	Interpretation Act 1987 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Tenacity Consulting v Waringah [2004] NSWLEC 140
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Second Reading Speech, NSW Legislative Council,18 May 2010
Category:	Principal judgment
Parties:	Anna Ingham (Applicant) Lisa Scenna (Respondent)
Representation:	Anna Ingham, litigant in person (Applicant) Ms M Williams and Ms A Wilson, agents (Respondent)
File Number(s):	20675 of 2015

Judgment

Background

1. On the outskirts of Blackheath, abutting Blue Mountains National Park, residents live on large lots in a leafy environment. Garden landscapes comprise a mixture of native and exotic plants offset by the native bushland of the neighbouring national park.

2. Ms Ingham (‘the applicant’) has owned her property since 2001. It is a long narrow property with her dwelling set back from the road frontage to the south and a roughly northerly outlook toward the national park from the rear of her dwelling. Here at the back of her dwelling are her living room and kitchen, with large windows, and an outdoor raised deck. She says the dwelling was designed to take advantage of the northerly aspect, maximising access to sunlight and available views. Photos taken circa 2000 (the property was owned by her family before Ms Ingham became the sole owner) show an open outlook from the rear of her dwelling and afternoon sunlight with its accompanying long shadows stretching across the northern end of the living room.

3. On the neighbouring properties to each side of Ms Ingham, close to her side boundaries, are hedges of Leyland Cypress trees – XCupressocyparis leylandii ‘Leighton Green’. Until recently, each hedge contained 76 trees planted closely in two straight rows roughly parallel with the common boundaries.

4. To her east, on Ms Scenna’s property, the hedge extended from slightly to the south of Ms Ingham’s dwelling, past the dwelling and for a considerable distance north of her dwelling next to the rear yard, until Ms Scenna (‘the respondent’) had 30 of the trees removed at the southern end of the hedge, including those closest to Ms Ingham’s dwelling.

5. To her west, the southern end of another neighbouring hedge is close to Ms Ingham’s dwelling and extends along the common boundary, further northward than the Scenna hedge.

6. According to Ms Ingham both hedges were 2-3 metres tall when she first owned her property and her dwelling had good access to sunlight and views. Since then the trees have grown vigorously, as Leyland Cypress will do in an environment as conducive as this. Trees in Ms Scenna’s hedge were pruned some years ago and are approximately 7 metres tall.

7. Ms Ingham finds her access to sunlight and views restricted by the hedges. She has unsuccessfully tried to reach an agreement for pruning the trees with both neighbours, and has therefore applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking a remedy. She has had to make two applications, one against each neighbour. The orders she seeks are the same for both: removal of trees in the row closest to the common boundaries (trees in both hedges are planted in two close rows) and trees in the second row to be pruned to 3.6 metres above ground level and maintained with annual pruning to that height. Neither respondent has proffered alternative orders.

8. The matters were heard in succession on the same day. The onsite hearing allowed viewing of trees on both respondents’ properties and of the situation on Ms Ingham’s property. Ms Ingham provided shadow diagrams (two sets: one by Mr Klauzner, architect, and another by Mr Burns, building designer) to demonstrate effects of the hedges on sunlight at different times of the day during different seasons. She also provided an arboricultural assessment by Mr Draper, arborist, and a survey plan including tree height data by Mr Bowler, registered surveyor. Ms Scenna did not provide any reports or shadow diagrams.

The framework for deciding these matters under the Trees Act

9. Part 2A of the Trees Act, at s 14B, provides an owner of land with a means for seeking remedy in relation to neighbouring trees obstructing either sunlight to windows of a dwelling or views from a dwelling.

10. There is no dispute that the trees in each hedge were planted so as to form a hedge and that they are more than 2.5 metres tall (s 14A(1)).

11. The Trees Act applies to trees on land of various designated zones, including ‘residential’, ‘rural-residential’, ‘village’ and ‘township’ among others (s 4(1)(a)) but Part 2A does not apply to trees on land designated as a ‘rural-residential’ zone (s 14A(2)(a)). The properties are designated as ‘Environmental Management’ zones (DLEP 2013), replacing the earlier ‘Bushland Conservation’ zone that applied here. Counsel for the respondent in the Ms Ingham’s other application suggested that as the land was not zoned ‘residential’ (or other zones mentioned at s 4(1)(a)) the Court has no jurisdiction over these trees. My understanding is that the Environmental Management zone, and the Bushland Conservation zone that it replaces, fall within a range of residential zones within the Blue Mountains Local Environmental Plans (LEP) or Draft LEP. Certainly there was no evidence adduced to indicate otherwise.

12. It is apparent that Ms Ingham ‘has made a reasonable effort to reach agreement’ (s 14E(1)(a)) with her neighbours.

13. Therefore the contention here in both matters is whether the trees concerned are severely obstructing: (i) sunlight to Ms Ingham’s windows; or (ii) views from her dwelling (s 14(2)(a)). If I find that the trees cause such an obstruction, there is a range of matters at s 14F of the Trees Act to be considered, before I determine if the applicant’s interests in addressing the severity and nature of the obstruction outweigh any reasons there may be to avoid interfering with the trees. Considerations include the trees’ landscape and environmental values and their contribution to privacy and screening.

14. Apart from the general background and the framework of the Trees Act outlined above, each matter was considered separately.

Does the respondent’s hedge severely obstruct sunlight or views?

15. The southern section of the hedge, comprising 30 trees to the east of Ms Ingham’s dwelling, was removed after Ms Scenna received a copy of Ms Ingham’s application to the Court. Ms Williams and Ms Wilson, as agents for Ms Scenna who lives overseas, say that Ms Scenna thought she had dealt with Ms Ingham’s concerns by removing those trees. Ms Ingham says the remaining trees still obstruct sunlight and views.

Sunlight

16. Both sets of shadow diagrams were made, according to their producers, using the survey plan of Mr Bowler. Neither Mr Klauzner nor Mr Burns inspected the site. Worryingly, there are discrepancies between the survey plan and both sets of shadow diagrams. Furthermore, neither set of shadow diagrams accurately reflects the rear of Ms Ingham’s dwelling. Mr Starr, giving evidence later in the other matter, also suggested that the north pointer on the shadow diagrams was not accurate. I rely on the diagrams as a guide to assist in assessing the extent of sunlight obstruction, rather than as an accurate depiction of the situation.

17. At 9:00 a.m. on the winter solstice, both the Klauzner diagrams (Exhibit D) and Burns diagrams (Exhibit F) show shadows of trees at the southern end of the hedge reaching Ms Ingham’s living room wall, but not her kitchen window. The shadows only just reach the wall, and though they may obstruct sunlight to the window this is likely to be only for a short period. Judging by the shadow position on the midday diagram, any shading of the living room window is likely to be gone by around 10:00 a.m. Comparing the winter and summer diagrams it is apparent that, with the trees at their current height, any obstruction of sunlight to the dwelling could only be caused for a brief period around the winter solstice. Furthermore, to the northeast of the few trees that can cast their shadow to the dwelling is a large pine tree that also contributes to shadowing. Other trees have not been considered in any shadow diagrams. Considering all of the above, I am not satisfied that trees in the Scenna hedge cause a severe obstruction of sunlight.

18. This is not to downplay Ms Ingham’s concerns, which I find to be real and valid. As Ms Ingham submitted, Blackheath can be a dim and damp place in winter, and every ray of sunshine is to be appreciated. Without interference, the trees will grow and they will cast greater shadows over the Ingham dwelling. However the assessment of the obstruction must be made in the present, and I do not find it to be severe. Therefore the Court cannot make orders for interfering with the trees on this basis, and there is no jurisdiction for the Court to warn a respondent to take action that might prevent inevitable future overshadowing.

Views

19. The Court’s jurisdiction regarding trees obstructing sunlight applies only to windows of the applicant’s dwelling, whereas its jurisdiction over the obstruction of views applies to the applicant’s dwelling. Ms Ingham says the Scenna hedge obstructs views from her living room, her kitchen and her large timber deck at the rear of the dwelling. Views are of the broad landscape, including sky, distant trees and the Scenna property.

20. Leyland Cypress trees planted closely form a dense screen as they grow. Although green and visually softer than a built wall, the hedge has the same screening properties as a solid wall – nothing can be seen through it. This is different to the effect of scattered trees with open canopies that allow a filtered outlook to the landscape beyond. Although the Scenna hedge obstructs only part of the view from Ms Ingham’s rear deck, it significantly changes the outlook so that instead of having a view of the broad landscape, Ms Ingham’s view is restricted to a narrow view down toward the rear of her property. This is not an inner urban environment, where views are inherently more restricted. It seems reasonable for someone living on a large residential property on the outskirts of a town such as Blackheath to expect broader views, especially when such a view was enjoyed earlier.

21. I find that trees in the Scenna hedge cause a severe obstruction of a view from Ms Ingham’s dwelling. Trees closer to her dwelling have the greatest impact, but to some extent it is also the hedge as a single unit that creates the sense of a limited outlook.

Consideration of other matters

22. Of the list of matters to be considered at s 14F of the Trees Act, the most relevant are discussed below.

23. The trees are alongside the boundary and their foliage overhangs the Ingham property. The hedge now begins several metres from the Ingham dwelling.

24. The trees were planted after the dwelling was built on what is now Ms Ingham’s property but before she became its owner. They were less than 3 metres tall when she first owned the property and did not severely obstruct the view.

25. The trees do not have historic or cultural value. They do not provide any significant positive contribution to the ecosystem nor to biodiversity.

26. The trees contribute to the scenic value of Ms Scenna’s property in some way but have no great value to public amenity.

27. There is no evidence that the trees have any impact on soil stability, the water table or other natural features.

28. Pruning as sought by Ms Ingham would have some detrimental effect on the trees. Mr Draper stated that this species can form new shoots from old wood and the trees would recover over time. He pointed out wounds where the trees were pruned in 2008 and the new growth that has occurred since. It is apparent that the trees have recovered from that pruning, are healthy and have not been adversely affected. Pruning would leave the trees looking very woody; their amenity value would be significantly reduced. Had the trees been pruned regularly and maintained at a smaller size, the impacts of the proposed pruning would be less. Ms Scenna did not indicate a preference for pruning the trees or removing and replacing them.

29. Because the trees are well north of dwellings on both properties, they don’t seem necessary for privacy or other screening.

30. In the absence of the hedge, other trees including a large pine tree would contribute to the view obstruction, however they are more distant and are not wall-like, but rather allow filtered views through to the sky and landscape.

31. The trees are evergreen and the view obstruction is year-round.

32. The view includes the natural landscape, trees, cleared land and sky.

33. Ms Scenna agreed to pruning in 2008. According to Ms Ingham half of that pruning was carried out by Ms Ingham and half was done by Ms Scenna.

34. Although the hedge is alongside her garden, it affects Ms Ingham’s dwelling. She has lost views from her living room, kitchen and rear deck. These living areas are likely to be used during the day, when the view can be seen. The deck too is most likely to be used during hours of the day when the view would be enjoyed.

35. As permitted by s 34(2) of the Interpretation Act 1987, for assistance in interpreting “severe obstruction” I refer here to the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW). On page 39 the Review expresses the intended scope of Part 2A of the Trees Act (with my emphasis):

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).

36. I accept that the view obstruction caused by the hedge severely affects Ms Ingham’s enjoyment of her property. The hedge is like a wall in its visual effect and, as Ms Ingham argues, a wall would not be permitted to this height along the boundary.

37. The advantages to Ms Ingham in having the trees pruned or removed are apparent. The reasons not to interfere with the hedge include the impacts of pruning on the trees, which will reduce their amenity value and possibly their life expectancies. Pruning or removing the trees would also come at some expense. However the advantages to Ms Ingham seem greater and I accept that orders should be made to remedy the view obstruction. Trees toward the southern end of the hedge cause the greatest obstruction, but the hedge is a single component of the landscape. Orders for trees at the southern end would be appropriate for all trees in the hedge.

38. If trees in the second row are pruned, removing the row of trees closest to the fence, as Ms Ingham requests, would not greatly increase the view access compared to pruning them, and I see no great advantage in doing this. Therefore trees in both rows should be pruned.

39. Ms Scenna did not attend the hearing. Ms Williams and Ms Wilson, her agents, did not have instructions to advise on Ms Scenna’s preference for pruning the trees or removing and replacing them, should the Court find a severe view obstruction.

40. The orders will allow Ms Scenna the option of pruning the trees to a height of 3.6 metres or of removing the trees and maintaining any replacement hedge at a height no greater than 3.6 metres. Pruning would be best prior to winter to provide Ms Ingham maximum access to sunlight during winter.

Orders

41. The Court orders that:

1. The application is upheld.

2. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the remaining (approximately) 46 Leyland Cypress trees forming a hedge along the common boundary with the applicant’s property as follows:

1. Reduce their height so that the top surface of the hedge is no more than 3.6 metres above ground level;

2. Remove all parts of the trees overhanging the applicant’s property by pruning back to the line of the common boundary.

3. Every year during April, beginning April 2017, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the pruning ordered in (2)(a) and (2)(b).

4. If the respondent decides to remove the remaining Leyland Cypress trees prior to the pruning ordered above or at any point in future, AND if the respondent determines to replant a hedge along the boundary, the respondent is to plant a different species of tree and is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the pruning ordered in (2)(a) and (2)(b) above during April of every year.

5. The works in (2), (3) and (4) are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

6. Given reasonable notice the applicant is to allow any property access required during reasonable hours of the day for the works in (2), (3) and (4).

____________________________

D Galwey

Acting Commissioner of the Court

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Amendments

05 January 2016 - Amended Jurisdiction from Class 1 to 2

Decision last updated: 05 January 2016