Liu v Li

[2021] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation:

Liu v Li [2021] NSWLEC 1376

Hearing dates:

22 June 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the orders below.

(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along his rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) If the two trees in order (2) have not been removed within 30 days of the date of these orders, the applicant, within 60 days of the date of these orders, is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along the respondent’s rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The applicant is to give the respondent 7 days’ notice of the time and date of the works.

(4) The respondent is to allow all access necessary for the works in (3), should they proceed, during reasonable hours of the day.

(5) Within 7 days of receiving a copy of a receipted paid invoice for the works in order (3), should they proceed, the respondent is to pay the applicant the amount of the invoice.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – trees do not severely obstruct sunlight to a window – one tree severely obstructs the view – orders for removing two trees in the hedge

Legislation Cited:

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

Cases Cited:

Drewett v Best [2010] NSWLEC 1305

Category:

Principal judgment

Parties:

Fuling Liu (Applicant)
Yang Li (Respondent)

Representation:

F Liu (Litigant in Person) (Applicant)
Y Li (Litigant in Person) (Respondent)

File Number(s):

2021/57876

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. Fuling Liu (‘the applicant’) and her husband Kevin have lived at their Carlton dwelling for six years. During that time, trees on a neighbouring property belonging to Yang Li (‘the respondent’) have grown above fence height.

2. Ms Liu has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for trees to be removed, pruned and maintained on the basis that these trees are severely obstructing a view from their dwelling and severely obstructing sunlight to windows of their dwelling.

3. Mr Li disputes that the trees severely obstruct sunlight or views.

Framework for this decision

4. 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, the Court must consider relevant matters at s 14F.

5. If orders are made, they might be those sought by the applicant, or they might be such orders at s 14D of the Trees Act as the Court otherwise sees fit to remedy, restrain or prevent a severe obstruction of sunlight or of a view.

6. Several issues raised during submissions, such as the applicant’s gardener pruning a palm tree on the respondent’s land some years ago without his permission, are irrelevant to this decision as they do not fall within the jurisdiction of the Trees Act, so they are not discussed here.

The hearing

7. The hearing took place onsite, allowing for observations of the trees, both properties, and obstruction of sunlight and views. With this week’s COVID-19 case numbers in mind, I made observations from within Ms Liu’s dwelling accompanied only by Ms Liu, with all submissions and other observations conducted outside. Mr Li had the opportunity to stand outside Ms Liu’s windows, so was able to gain an impression there of the trees’ impacts to these windows.

The applicant made reasonable effort

8. The Lius spoke with Mr Li prior to Ms Liu filing her application. They offered to split the cost of pruning the trees with Mr Li at the time of making the application, and again after the directions hearing. I am satisfied that they made reasonable effort to reach some agreement.

Only some trees in the application are part of a hedge

9. The respondent’s property is downslope from the applicant’s property. The shared common boundary is the respondent’s rear boundary and is a section of the applicant’s side boundary. In the garden bed along his rear boundary the respondent has vegetation growing. A row of trees includes several murraya, a pittosporum, a cypress (a pine in the application) and a palm tree. Several philodendron plants grow along the fence.

10. Philodendrons have a climbing habit along the fence. Their foliage does not form a screen. They do not form a hedge. The palm’s foliage is separate from the other trees and does not form a screen. It is not part of a hedge.

11. Other trees do form a hedge. Several murraya, a Pittosporum undulatum and a cypress tree form a continuous hedge-like screen of vegetation along the boundary. They appear to have been planted at the same time. The 6-metre tall cypress, with its faster growth rate, is taller than the other trees, which are approximately 3 metres tall. The cypress grows above window height on the applicant’s ground floor, while the other trees are not above window height.

Obstruction of sunlight

12. The application concerns Ms Liu’s family room window and dining room window, which are on the wall parallel with, and less than a metre from, the common boundary and the trees. These windows face southeast. While the cypress tree limits light to the two windows due to its proximity, height and width, it does not severely obstruct direct sunlight to the windows. The Court considers ‘sunlight’ in the Trees Act to refer to ‘direct sunlight’ (see Drewett v Best [2010] NSWLEC 1305 at [17]). There would be little or no direct sunlight obstruction during winter, and only limited obstruction during summer mornings.

Obstruction of views

13. Open district views are available from the two windows (dining and living) on the ground floor. Only the cypress tree obstructs these views, as other trees in the hedge are currently too low. Foliage of the cypress, at most a metre from these two windows, forms a dense screen that obstructs more than half of the view from most viewing points in these rooms. It has a severe impact on the outlook from these two rooms, such that the Court can make orders pursuant to s 14E(2)(a)(ii) of the Trees Act.

14. From windows on the upper level, the cypress tree does not obstruct the view.

Consideration of relevant matters

15. Having found that one tree in the hedge severely obstructs a view, I can make orders to remedy, restrain or prevent the obstruction. I have considered all relevant matters at s 14F of the Trees Act in coming to appropriate orders.

16. Interfering with trees in the hedge to the extent proposed by the applicant would have minimal impact on the respondent’s amenity and privacy.

17. Pruning the cypress to the extent required to restore the applicant’s view would leave it looking unattractive. Its ongoing pruning would be onerous. The cypress tree is unsuitable this close to the applicant’s house, so I will order its removal.

18. While orders could be made for all trees in the hedge, they are not needed at present. The only other problematic tree in the hedge is the Pittosporum undulatum, which is likely to grow taller than the murraya and is a weed species. Its removal will also be ordered. That will just leave a row of several murraya, which do not currently obstruct sunlight or views. Should Mr Li fail to maintain them in such a way to prevent further view obstruction to his neighbours, they may apply again to the Court for orders.

Orders

19. As a result of the foregoing, the Court orders that:

1. The application is granted to the extent of the orders below.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along his rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

3. If the two trees in order (2) have not been removed within 30 days of the date of these orders, the applicant, within 60 days of the date of these orders, is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along the respondent’s rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The applicant is to give the respondent 7 days’ notice of the time and date of the works.

4. The respondent is to allow all access necessary for the works in (3), should they proceed, during reasonable hours of the day.

5. Within 7 days of receiving a copy of a receipted paid invoice for the works in order (3), should they proceed, the respondent is to pay the applicant the amount of the invoice.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 23 June 2021