McCrossin v Carter

[2023] NSWLEC 1500

Land and Environment Court

New South Wales

Medium Neutral Citation:

McCrossin v Carter [2023] NSWLEC 1500

Hearing dates:

15 May 2023

Date of orders:

05 September 2023

Decision date:

05 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [59].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – was sunlight available upon occupation – consideration of privacy

Legislation Cited:

Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006

Pt 2A, ss 6, 12,14A, 14B, 14C, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2007

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Steber v Job [2019] NSWLEC 1308

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

AS4373:2007 Pruning of amenity trees

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

Category:

Principal judgment

Parties:

Scott McCrossin (Applicant)
Anthony Francis Carter (First Respondent)
Joanne Therese Collins (Second Respondent)

Representation:

S McCrossin (Self represented) (Applicant)
A Carter (Self represented) (Respondents)

File Number(s):

2023/80275

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Scott McCrossin, the applicant, and the respondents, Anthony Carter and Joanne Collins, share a boundary between their properties in Bondi that extends from north-east at the front of the applicant’s dwelling to south-west at the rear. The parties’ dwellings are located in perpendicular streets, and the applicant’s long north-western side boundary is the rear boundary of the respondents, and three of the respondents’ side neighbours.

2. Access to Mr McCrossin’s dwelling, which he occupied in December 2011, is via an 1100 mm wide path between the applicant’s 3-storey brick side wall and the common boundary fence. The fence is a 2.4 m tall solid screen, topped with a timber lattice about 900 mm tall. Most windows in the applicant’s ground floor rooms source natural light only from the north-western side, where sunlight is obstructed by the fence and lattice as well as the respondents’ trees. The applicant’s main living area at the northern end of the dwelling’s upper level was, however, bathed in natural light.

3. Three Magnolia grandiflora (Evergreen Magnolia) had been planted along the common boundary before 2008, and at some time later, Bambusa textilis var. Gracilis (Slender Weavers Bamboo) was interplanted with them. The applicant claimed that the Evergreen Magnolia trees had since grown to about 9 m and the Bamboo to about 12 m, and that they severely blocked sunlight to windows of his dwelling. He also claimed that sunlight was obstructed by the “unapproved” timber lattice, above the boundary fence.

4. After discussing pruning of the trees with Mr Carter in November 2022, the applicant claimed he received no response to two contact attempts with Mr Carter in early 2023, nor any pruning of the trees.

5. Consequently, Mr McCrossin submitted an application to the Land and Environment Court, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), which proposed the following (summarised) orders:

“1. Prune bamboo hedge at the rear of the respondent’s land to a height of 2.5 metres above ground level.

2. Prune three Magnolia trees at the rear of the respondent’s land to a height of 2.5 metres above ground level.

3. Prune bamboo hedge growing along the northern side boundary of the respondent’s land to a height of 2.5 metres above ground level.

4. Remove unapproved lattice (800mm-1000mm) above existing 2.4-metre-high fence on the common boundary.”

Framework

6. 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 the applicant’s dwelling (or of the applicant’s views). 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

7. At the onsite hearing, Mr McCrossin was self-represented, and Mr Carter represented the respondents. One week prior to the hearing, the trees were pruned by contractors, under the respondents’ instruction, to about 5.8 m tall, nearly equivalent to the applicant’s upper floor gutters. Mr Carter claimed Mr McCrossin’s pre-pruning bamboo height estimate of 12 m was exaggerated, but both parties acknowledged the Bamboo was considerably taller than its current height. Mr Carter also disputed the applicant’s claim that entire culms (stems) had been removed to reduce density and increase sunlight penetration, ostensibly ‘for the benefit of the hearing’.

8. The applicant nominated three tall north-west facing windows/ glass doors (W1 – W3) on the dwelling’s ground floor, and an opaque window in the first-floor kitchen (W4), for assessment of obstruction of sunlight. Mr McCrossin’s primary consideration was accessing sunlight through W1 – W3 to a ground floor room, which also contained a kitchen and was authorised for use as a separate living area. The applicant was not satisfied that the height to which the trees had been pruned was sufficiently low to overcome his sunlight obstruction and re-iterated his preference that the tree height be reduced, ideally to about 2.5m, in line with the height of the fence.

9. The respondents valued the trees for the privacy they provided in their dwelling and yard, and for their contribution to the garden’s aesthetics. They did not want to view any of the applicant’s wall or roof. The respondents acknowledged having allowed the boundary trees to get too big but submitted that the fence was the main cause of sunlight obstruction.

10. Both dwellings are multi-storey and have been subject to modifications to mitigate oversight from each other. Nonetheless, if the respondents’ trees were absent or heavily pruned, both dwellings would be starkly exposed, with some residual opportunity for oversight.

Jurisdictional requirements – Pt 2A

11. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court must consider a number of jurisdictional tests before any orders can be contemplated, but 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.

12. 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).

13. 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 the trees to which this part applies. The trees must be situated on adjoining land.

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

15. 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)).

16. 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.

17. Of significance is s 14E(2) of the Trees Act. This 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.

18. 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?

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

20. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom) at [45], a hedge under the Trees Act was described as follows:

“.... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, 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.”

21. The Magnolia trees were planted together with fairly uniform spacings, and though only three trees, they were growing in an orderly row, consistent with [45] of Wisdom. Bamboo is prescribed as a tree under the Trees (Disputes Between Neighbours) Regulation 2007. The bamboo was well established, and the clumps had broadened and merged, as is their nature, such that the bamboo was distributed fairly uniformly across the garden bed. Both the Bamboo and Magnolia trees were over 2.5 m tall, and the respondent said they were planted to screen off the applicant’s stark wall with attractive vegetation. I am therefore satisfied that the trees formed a hedge, so that s 14A(1) of the Trees Act is engaged.

22. 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

…

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

23. The applicant owns his property, and claims that the hedge severely obstructs sunlight to at least one window of his dwelling. The hedge comprised trees to which Part 2A of the Trees Act applies, which are situated on adjoining land. Therefore, s 14B of the Trees Act is engaged.

24. The applicant has also satisfied s 14C of the Trees Act, which required notice of the application for order/s to be given to owners of affected land. I found no record of service of the application on the respondents in the case file, but both parties attended the directions hearing on 11 April 2023, and Mr Carter lodged his Notice of Appearance with the Court on 11 April 2023. Though no service of the application on Randwick City Council (Council) was evident in the case file, I invoked powers provided at s 14C(3) of the Trees Act, to waive the requirement to give notice to Council or other authority. Council is unlikely to have an interest in the hearing, and neither party was disadvantaged by a waiver of the requirement at s 14C(1)(b) of the Trees Act.

25. While s 14D(1)’s “…as it thinks fit…” allows for a broad range of orders, s 14D(2) lists orders that might ordinarily be appropriate for addressing a severe obstruction of sunlight or a view, including at (a) and (b) the making of orders that would “require the taking of specified action” to remedy, restrain or prevent the obstruction. The Court also has scope to make orders per s 14D(2)(d), which requires the removal of a tree or trees and the replacement of the tree or trees with a different species of tree.

Findings – s 14E

26. Section 14(E) of the Trees Act covers matters of which the Court must be satisfied before making an order. Section 14E(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated.

27. Mr McCrossin, at question 30 of Form G (Tree Dispute Claim Details), noted making requests for pruning of the trees since 2014, and claimed that in the interim, minor trims had been carried out about twice. Mr McCrossin claimed that after consistently trimming overhanging branches to reduce sunlight obstruction, the hedge grew too tall for “conventional garden equipment”. Mr McCrossin noted having a face-to-face meeting with Mr Carter on 19 November 2022 and claimed Mr Carter agreed to take some action with the hedge. After no practical response was forthcoming, regardless of following up with Mr Carter in January and February 2023, the application was made with the Court.

28. Mr Collins said he twice had advised the applicant he would prune the Magnolia trees after they finished flowering but claimed Mr McCrossin was inflexible in his demands and provided no scope for negotiation. Nonetheless, the Trees Act does not prescribe the methods or nature of the applicant’s negotiations, and the chronology provided satisfied s 14E(1)(a) of the Trees Act.

29. The next step is to assess the severity of the obstruction of sunlight to a window of the applicant’s dwelling as a consequence of any or all of the trees in the hedge under s 14E(2)(a).

Is sunlight to windows severely obstructed?

30. The applicant’s nominated windows faced north-west; thus, they can only receive direct sunlight after mid-morning. The ground floor of the applicant’s dwelling appeared to be situated at or below the level of the respondents’ land, though the applicant claimed this appearance was due to a raised deck in front of W1 – W3. The applicant’s submissions were based on the hedge’s impact prior to the recent pruning.

31. Mr McCrossin assessed the hedge on the 7 March 2023 and claimed that sunlight hit the lowest 600 mm of W1 – W2 between 12:10 and 12:35 pm, but in the absence of the hedge, he claimed W1 – W2 would receive sunlight from 12:10 to 5:45 pm. The applicant claimed that eaves above W3 – W4 prevent any sunlight reaching these windows between 12:10 and 12:35 pm and the hedge blocks sunlight for the remainder of the day. Mr McCrossin estimated W3 – W4 would receive about 5 hours of afternoon sunlight if the hedge was absent, and “there may be slightly more sunlight mid-summer and somewhat less during winter”.

32. The annual variability in sunlight access would be much more marked than Mr McCrossin suggested. At the winter solstice, when the sun’s angle reaches about 33 degrees above horizontal, the 2.4 m tall solid boundary fence would cast a shadow across the applicant’s narrow side path, preventing sunlight reaching W1 – W3, for about 1.5 m above ground level, while the lattice would filter light to W1 – W3 above the fence’s shadow for about 600 mm.

33. Other factors obstructing sunlight are 15 m tall, mature Melaleuca and Casuarina trees on the street to the north that block winter morning light, and established palms at the rear of the respondents’ south side neighbours’ yard that would have a marked impact on afternoon sunlight reaching nominated windows, particularly in winter. I doubt that sunlight would reach W1 – W3 after about 3 pm between April and early October as a result of the palms’ presence.

34. As are in, “the trees concerned are severely obstructing” in s 14E(2)(a), is constructed in the present tense, assessment of severity of obstruction of sunlight to a window, or of views from a dwelling, has consistently been based on the size and nature of the hedge as presented at final hearings under the Trees Act. For sunlight obstruction, the severity of obstruction at the winter solstice is also considered, as winter sunlight and associated natural warmth are especially valued.

35. With the trees having been heavily pruned to about 5.8 m tall prior to the hearing, I was not satisfied that the hedge was the primary cause of obstruction of sunlight to the applicant’s windows, or that the hedge was severely obstructing sunlight to a window of the applicant’s dwelling. Rather, obstruction of sunlight to windows was primarily caused by the tall solid boundary fence and lattice in close proximity, and exacerbated by building orientation and design, and other neighbours’ vegetation.

36. Though the details were contested, both parties acknowledged that the respondents had been delayed having the trees pruned, and in the protracted interim, both species, but particularly the Bamboo, had grown considerably taller than their current height. Mr McCrossin said that Magnolia branches, overhanging the boundary above the applicant’s side path, had significantly obstructed midday sunlight that, in the foliage’s absence, could tunnel down to the laneway and reach the path and all nominated dwelling windows. Both tree species are well established and have the propensity to grow rapidly, particularly the Bamboo.

37. I am satisfied that the obstruction of sunlight was recently severe, and though disputed by Mr Carter, the nature and location of large pruning cuts on the Magnolia trees suggested the trees had been unpruned for 2-3 years. Considering the nature of interaction between the parties, the rapid growth rate of bamboo and the apparent vigorous growth of the established Magnolia trees, I was also satisfied the sunlight obstruction and was likely to recur.

38. The site and evidence portrayed a similar situation as found in Steber v Job [2019] NSWLEC 1308 (Steber), where Galwey AC argued an alternative interpretation to the imperative that the severe obstruction be present at the hearing. At [34]-[45] of Steber, Acting Commissioner Galwey says;

“ [34] The jurisdictional test at s 14E(2)(a) requires the Court to be satisfied that the trees concerned are severely obstructing sunlight or a view. This Court has, in many cases, construed the grammatical use of the present progressive ‘are obstructing’ (leaving out the adverb ‘severely’ for the minute) as a test to be applied on the day of the hearing. In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found at [14] that the use of the present tense implies ‘at the time of the hearing.’

“The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing.”

[35] I concur that the test does not refer to a future, as yet unrealised, view obstruction, but I am no longer convinced that ‘are obstructing’ implies ‘at the time of the hearing’, even though I have applied this interpretation myself until now. Given the potential consequences of such a change of mind, it is worth explaining. After all, the annotated version of the Trees Act, available for potential applicants and respondents in tree matters, includes reference to this well-used interpretation of s 14E(2)(a).

[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’.

[40] Both reviews recognised that the jurisdiction regarding hedges must be strictly limited, reflected by the wording of Part 2A. Neither review noted any requirement for a jurisdictional test to be satisfied on the day of the hearing. Although the wording of Part 2A is carefully chosen to limit the jurisdiction, the underlying purpose of this Part is to provide, where appropriate, means for a land owner to seek and obtain orders to restore access to views or sunlight obstructed by a neighbouring hedge. The 2009 Review takes particular care to recommend that it must be the applicant, not a previous owner of their property, who has lost their view or solar access. However it makes no effort to pinpoint the day on which the obstruction must be found to be severe.

[41] Interpreting ‘are obstructing’ to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called ‘spite hedges’) land owner to repeatedly wait for a neighbour’s application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is ‘manifestly absurd or is unreasonable’, reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting ‘are obstructing’ to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act’s objective of providing a ‘simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours’. For this reason, I prefer this construction of s 14E(2)(a).

[42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order.

[43] The Stebers have shown through their photographs that the bamboo has severely obstructed their view. They argued that the bamboo grows so quickly that their view will soon be obstructed again. Knowing the growth habit of the bamboo, I accept this to be the case.

[44] The Stebers argued that Ms Job has demonstrated through her actions, or lack of action, that she cannot, or is not willing to, prevent her bamboo growing and obstructing their view. I accept this to be the case. Ms Job initially responded to the Stebers’ request to restore their view with promises to prune the bamboo. Only minor pruning was done. Ms Job stated that she was unable to undertake the pruning herself, and she had great difficulty finding someone to do it. She submitted that contractors were put off by the heat during summer. This does not explain the two years it appears to have taken for adequate pruning to finally be done.

[45] Having considered photographs, observations, the history of the matter and the submissions heard, I find Ms Job’s hedge has caused a severe obstruction of the Stebers’ view and that this is likely to be an ongoing state. I am satisfied that the trees, in this case bamboo, are severely obstructing the view from the Stebers’ dwelling.”

39. In adopting Acting Commissioner Galwey’s interpretation from Steber, I am satisfied that, prior to recent pruning, tall Bamboo canes had arched, and Magnolia branches had extended over the applicants’ narrow side passage to obstruct the only otherwise available sunlight around midday. In combination with the impact of the dense tall hedge obstructing sunlight from reaching all nominated windows through the afternoon, the obstruction of almost all vertical midday sunlight that, in the foliage’s absence, could tunnel down to the laneway and reach nominated dwelling windows, would render the laneway almost absent of sunlight. Without intervention, the trees rapid growth rates render the obstruction likely to recur, particularly as the parties are polarised and the respondents do not wish to see any of the respondents’ dwelling.

40. Consequently, I am satisfied that the obstruction of sunlight was recently severe, such that s 14E(2)(a)(ii) of the Trees Act is engaged. This provides the Court powers to make orders, but the Trees Act requires me to first consider the balancing of interests in s 14E(2)(b), which 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.

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

42. Bamboo, interplanted with three Magnolia trees in a garden bed against the rear boundary, together form an imposing wall like hedge beside the applicant’s side path. The respondents’ side hedge which joins perpendicular to their rear hedge and screens the respondents from their north side neighbour, also obstructs sunlight to the applicant’s windows, particularly in winter (s 14F(a)).

43. While the applicant’s dwelling existed prior to the trees, Mr McCrossin conducted renovations which included reconfiguration of windows facing the respondents. The applicant claimed these renovations involved only minor changes which enhanced the potential for sunlight penetration (s 14F(b)).

44. Photographs from about the time of the applicant’s occupation show the Magnolia trees’ canopies about 500 mm above the top of the fence, apparently with the bamboo below. Therefore, most of the trees’ growth has occurred since then (s 14F(c)).

45. In the absence of s 6 of the Trees Act, tree removal or pruning in excess of 20% of canopy volume, requires separate approval from Council under the Environmental Planning and Assessment Act 1979 (s 14F(d)).

46. Section 14F(k) considers the impact pruning would have on the trees. As discussed at the hearing, the bamboo is likely to shoot many new stems in spring and summer that will rapidly grow to the height of those recently pruned. Bamboo tolerates pruning, provided sufficient live foliage is retained on each stem. Pruning at a height of 5 m for example, would normally have negligible negative impact on a bamboo stem or clump’s viability. Fairly hard pruning of the Magnolias is not ideal, as the trees would likely be stressed by a reduction in photosynthetic capacity and depletion of storage reserves, but they are a hardy species that are fairly tolerant of pruning. Pruning both species at a height of 2.5 m, as proposed by the applicant is discouraged, however, as almost all potential bamboo foliage, sun exposure of which is essential for long term viability, would be removed, and both the health and structure of the Magnolia trees would be negatively impacted. Mr Carter submitted that most of the growth and flowering of the Magnolias is high on the trees, and he would prefer more growth lower down the trees. This is also a likely consequence of reducing tree height.

47. The trees contribute to the respondents’ shade, garden design and landscaping, and to privacy by restricting oversight from the applicant’s land. The respondents value the aesthetics of their green oasis, which excluded visual access to most built structures, particularly the imposing appearance of the applicant’s side wall (s 14F(l)).

48. Section s 14F(m) considers anything, other than the trees, that has contributed or is contributing to the obstruction. As the hedge height had been significantly reduced before the hearing, I found that the hedge obstructed sunlight to windows, but the primary cause of sunlight obstruction was the 2.4 m solid fence topped with timber lattice panels, located only 1100mm from the applicant’s low windows, W1 – W3. Had the fence and lattice been absent or porous to light, sunlight could have illuminated the nominated windows and doors from late morning until about mid-afternoon for much of each year.

49. In an attempt to reduce the impact of light obstruction, the applicant painted his facing fence wall white to enhance reflection. Both species are evergreen, and the Magnolia leaves are large and dense (s 14F (m) and s 14F (p)).

50. The issue of fauna activity is considered at s 14F(s) amongst “other matters as the Court considers relevant in the circumstances of the case”. Mr McCrossin claimed to have “significant possum activity every night with possums accessing the roof directly from these trees – large amounts of possum scat and putrid aroma daily”. He also attributed “significant rat activity” to the respondents’ property.

51. Notwithstanding that urban communities often value native fauna, in dealing with claims that trees attract or harbour pests, the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.

52. This is explained in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 , at [189], where his Honour says:

“189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23].”

53. As to the applicant’s claim that “uncontained bamboo presents a risk to retaining walls, fence and sewer drainage”, no evidence was provided to substantiate this claim, and the respondents’ clumping variety of Bamboo is generally less problematic than rhizomatous or ‘running’ bamboo.

Conclusion

54. At the hearing, which was held after the bamboo had been pruned, obstruction of sunlight to W1 – W3 was primarily caused by the tall, solid fence and lattice, and the low level of the room housing W1 – W3. This impact would be greatest in winter, when tall Melaleucas and Casuarina street trees to the north and established palms in the rear yard of the respondents’ south side neighbour would also block sunlight. Through mid-spring, summer, and early autumn, sunlight could reach all windows through the middle of the day and filter through the hedge during the afternoon. Therefore, I was not satisfied that the hedge, in the absence of the other obstructions, was severely obstructing sunlight to the applicant’s nominated windows.

55. I was satisfied, however, that close similarities to the circumstances of Steber rendered it lawful and reasonable to adopt Acting Commissioner Galwey’s interpretation of the jurisdictional test at s 14E(2)(a) of the Trees Act. My assessment of sunlight obstruction thus considered the condition of the hedge prior to the recent pruning, when tall Bamboo and Magnolia branches had overhung the boundary above the applicant’s side path, and severely obstructed the only otherwise available sunlight around midday; a situation, like Steber, where such sunlight obstruction had been severe, and based on the tree species and the protracted and acrimonious history of the dispute, is likely to again be severe in future. Consequently, s 14E(2)(a) of the Trees Act was engaged.

56. In considering relevant s 12 elements of the Trees Act, the room housing W1-W3 is on the ground floor adjacent a tall solid fence and lattice only about 1100mm from the dwelling. As much as the applicant wished that this ground floor living room received ample sunlight, the wall is an insurmountable primary obstruction, and it is unreasonable that the respondents be required to compensate for this site constraint by pruning their hedge to about 2.5 m, as proposed by Mr McCrossin, at the expense of considerable amenity. Similarly, while the hedge provides the respondents with coveted privacy and enhanced aesthetics, in the context of medium density urban living on relatively small land parcels, the respondents’ expectations of entirely camouflaging a 3-storey building wall with vegetation is also unreasonable, when such persistent horticultural extravagance was at the expense of a neighbour’s sunlight access.

57. Consequently, the orders of the Court may satisfy neither party, but they provide a functional compromise that balances the valid interests of both. Orders shall be made for annual pruning of both the Magnolia trees and the Bamboo, which would rapidly regrow if unabated. Annual constraint on the bamboos’ height provides for sunlight access from above, even though increased hedge density may again compromise lateral sunlight penetration. The extent of annual Magnolia tree pruning is likely to satisfy the respondents proposed alternative order of pruning the Magnolia’s by a maximum 20% annually, and the timing will be after the trees’ main flowering period. As the hedge provided dense screening, there is no residual need for the lattice above the fence, and orders will be made for removal of the lattice.

58. Though street trees will continue to obstruct late morning and midday sunlight in winter, pruning of the eastern end of the respondents’ north side bamboo hedge prior to each winter should also improve sunlight access around this time. It is usual for respondents to shoulder the financial burden when orders are made, and there is no reason to vary this practice here.

Orders

59. The Court orders are:

1. Within 45 days of the date of these orders, the respondents, at their expense, shall remove all timber lattice and lattice frames from the top of the timber common boundary fence and not replace it with any structure that may obstruct sunlight.

2. During April of 2024, and during April of each subsequent year, the respondents, at their expense, shall prune the Bamboo and Magnolia hedge growing adjacent to the common boundary, and the first 1.5 metres of the respondents’ north side hedge, north-west of the common boundary, to a height 250mm below the gutter line of the applicant’s dwelling. Each pruning operation shall include pruning of the respondents’ north side hedge, other than the first 1.5 metres at the north-eastern end, to a height equivalent with the bottom of the barge board under the respondents’ roof, and removal of all foliage overhanging the common boundary into or above the applicant’s land.

3. The pruning works shall be completed by AQF level 3 arborists who hold all appropriate insurances.

4. All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and the Magnolia pruning shall comply with the Australian pruning standard, AS4373:2007 Pruning of amenity trees.

5. The applicant shall grant all reasonable access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (3), upon receipt of at least 72 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: 05 September 2023