McPherson v Alper

[2024] NSWLEC 1258

Land and Environment Court

New South Wales

Medium Neutral Citation:

McPherson v Alper [2024] NSWLEC 1258

Hearing dates:

14 February 2024

Date of orders:

16 May 2024

Decision date:

16 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

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

(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove trees 1–12 as identified in the application (‘the tree works’). The tree works are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

(3) Should the respondent replant a hedge along the length of the boundary where the trees are removed, the hedge must be of a species that reaches no more than 3 metres at maturity.

(4) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – cypress hedge – obstruction of sunlight and views – whether the obstruction is severe – privacy – whether the trees should be pruned or removed

Legislation Cited:

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

Cases Cited:

Haindl v Daisch [2011] NSWLEC 1145

Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140

Texts Cited:

Australian Standard, AS4373-2007 Pruning of amenity trees, 2007

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Sutherland Shire Development Control Plan 2015

Category:

Principal judgment

Parties:

Murray John McPherson (Applicant)
Emre Alper (Respondent)

Representation:

Counsel:
M McMahon (Solicitor) (Applicant)
E Alper (Self-represented) (Respondent)

Solicitors:
M E McMahon and Associates (Applicant)

File Number(s):

2023/438223

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Bundeena neighbours Murray McPherson (the applicant) and Emre Alper (the respondent) share a common boundary, being the side boundary of each property. Mr Alper’s single-storey dwelling is downslope and to the east of Mr McPherson’s two-storey dwelling. On Mr Alper’s property, along the entire length of his western boundary, a row of cypress trees creates a screen some 8 metres tall between the two dwellings. The trees were planted in two sections: 12 trees in a row from the front of Mr Alper’s property and another 13 trees continuing southward along the boundary. Mr McPherson found the 12 northern trees (‘the hedge’, or ‘the trees’) grew to obstruct sunlight to, and views from, his dwelling. He applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the 12 trees forming the hedge to be removed or, failing that, for them to be maintained at the height of the dividing fence along the common boundary. Mr Alper refutes that the trees cause the obstructions claimed by Mr McPherson.

2. The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant’s property to inspect the trees’ impacts on sunlight and views. Privacy and overlooking issues were observed at both properties. Mr McMahon represented the applicant; Mr Alper was self-represented.

3. In material filed with the Court, and in correspondence to each other, both parties cited numerous examples of caselaw that they argued would support their respective cases. Much of it was not relevant to my decision in these proceedings, and during the hearing I limited submissions to those that were relevant.

Framework for this decision

4. The key jurisdictional tests in these Pt 2A proceedings are found at s 14E(2) of the Trees Act:

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

(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.

(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, 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.

Reasonable effort to reach agreement

5. Correspondence, in the form of emails and letters between the parties, shows that Mr McPherson tried to reach some agreement over the hedge with Mr Alper. The correspondence also shows that reaching any agreement was unlikely. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents (s 14E(1)(a) of the Trees Act) and that the applicant gave the required notice of the application (s 14E(1)(b)).

The hedge

6. The hedge consists of 12 Leyland cypress (Cupressus × leylandii) at least 8 metres tall forming a dense screen along the boundary. The respondent does not dispute that the trees are planted to form a hedge and that they are more than 2.5 metres tall. Part 2A of the Trees Act applies to the trees (s 14A of the Trees Act).

Whether the trees severely obstruct sunlight

7. Mr McPherson claims that trees obstruct sunlight to the following windows:

• W5, a north-facing window to a bedroom on the ground floor;

• W8, a high east-facing window in the ground-floor kitchen;

• W7, a north-facing window to a bedroom on the first floor; and

• W11, a high east-facing window in the first-floor sunroom.

8. The trees are more than 8 metres tall, reaching above the eaves of Mr McPherson’s two-storey dwelling. They are 2–3 metres from his east-facing windows (W8 and W11) and closer to the north-facing bedroom windows (W5 and W7). The trees form a solid screen to the east of Mr McPherson’s dwelling. Mr McPherson has not provided shadow diagrams. He relies on photographs provided to the Court, along with the Court’s view of his property, to demonstrate the extent of the sunlight obstruction caused by the trees.

9. Mr Alper provided photographs showing sunlight and shading on Mr McPherson’s windows at different times of the day throughout the year. He argued that those photographs show that windows on the eastern side of Mr McPherson’s dwelling (W5, W7, W8 and W11) receive sunlight for a limited time during the morning, after which time they are shaded by the eaves of Mr McPherson’s dwelling. Mr Alper submitted that the design of the applicant’s dwelling results in these windows receiving less sunlight than the minimum recommended in the Sutherland Shire Development Control Plan 2015 (the Sutherland DCP).

10. The design and orientation of Mr McPherson’s dwelling allow windows W5, W7, W8 and W11 to potentially receive direct sunlight for most of the morning throughout the year. Mr Alper’s photographs were taken at times of the day that show sunlight on windows or shade from Mr McPherson’s eaves on windows. Photos have not been taken regularly, at hourly intervals for instance, to fully show the progression of shade throughout the morning. Considering the effort Mr Alper has gone to in preparing other parts of his evidence and submissions, this strikes me as more than a fortunate coincidence. Having studied Mr Alper’s photos and made my own observations at the onsite hearing, I am satisfied that the hedge obstructs sunlight to the two ground-floor windows, being the bedroom (W5) and the kitchen (W8), for most of the morning. As the hedge obstructs sunlight for most of the period during which it would otherwise be available, I consider this to be a severe obstruction.

11. Due to the height of the first-floor windows W7 and W11, the trees have a lesser impact on sunlight availability there. Direct sunlight reaches those windows earlier than it reaches the ground-floor windows and is available for much of the morning. The hedge does not severely obstruct sunlight to windows W7 and W11.

Balancing the parties’ interests in relation to sunlight

12. I have considered the matters at s 14F of the Trees Act and rely on them to weigh Mr McPherson’s interests in gaining orders against any reasons to avoid interfering with the hedge (s 14E(2)(b)).

13. In summary, I note that the trees are planted close to the boundary and close to Mr McPherson’s dwelling. They have grown to obstruct sunlight to windows W5 and W8 during the time Mr McPherson has occupied his dwelling. Leyland cypress is an exempt species under the Sutherland DCP, so council consent is not required to prune or remove the trees. The trees may provide some habitat for birds and other fauna that might nest within their branches, and they provide some ecosystem services, but they do not contribute any significant environmental value, nor do they contribute to biodiversity; they are often regarded as a weed. Their contribution to public amenity is minor. They may give the impression of privacy screening for Mr Alper, but the four windows near the hedge are two north-facing bedroom windows that do not directly face Mr Alper’s dwelling, and two high-sill windows that do not facilitate overlooking.

14. As submitted by Mr Alper, W5 is a window to a bedroom, where people are less likely to spend time during the period that sunlight might otherwise be available. If this were the only affected window, the benefits to Mr McPherson would not justify making orders to interfere with the trees (s 14E(2)(b) of the Trees Act). However, sunlight to the kitchen window (W8) during the morning is valued and more likely to be enjoyed. Here I find that Mr McPherson’s interests justify orders to remedy the obstruction.

15. The options for remedying the sunlight obstruction are to prune or remove the trees, as per the orders that Mr McPherson seeks. Relevant issues that assist in determining the appropriate orders are considered further below, after I assess the view obstruction.

Whether the trees severely obstruct a view

16. Mr McPherson claims that trees obstruct views from the following areas of his dwelling:

• the ground-floor kitchen, through W8, a high east-facing window;

• a bedroom on the first floor, through W7, a north-facing window;

• the first-floor sunroom through W11, a high east-facing window, and more so through the glass doors and panels across the sunroom’s northern side, leading to the front balcony; and

• the first-floor north-facing balcony.

17. In determining the severity of obstructions to Mr McPherson’s views, I use the qualitative terms from the view-sharing principle in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 (at [28]): negligible, minor, moderate, severe or devastating.

18. The view through window W8 takes in the sky and, if one is tall enough, parts of the landscape. The view from window W7 to the north is a relatively narrow view along the eastern side of Mr McPherson’s dwelling to the distant landscape that includes a water view. The first-floor sunroom has a broad view through W11 of the distant landscape, including a water view. This is the principal and most valued view from Mr McPherson’s dwelling. This view is even broader from the front balcony. Mr McPherson submitted that the trees severely obstruct the view from all of these locations within his dwelling.

19. Mr Alper submitted that the trees cannot severely obstruct a view if the trees become the view. He repeated this several times during his submissions, regarding various views, arguing that the wall of foliage within metres of Mr McPherson’s windows should now be considered the view. What right, he asked rhetorically, does Mr McPherson have to choose one view (the landscape and sky) over another (the hedge)? In response, Mr McMahon understandably, and correctly, submitted that Pt 2A of the Trees Act would have no work to do regarding views if the Court was to take the approach posited by Mr Alper. It almost goes without saying that I find the trees are not the view; rather, they form a solid screen that obstructs the view from several parts of Mr McPherson’s dwelling.

20. Mr Alper suggested that Mr McPherson’s distant view of Botany Bay National Park, which includes water and a headland, is only available to Mr McPherson because of Mr McPherson’s successful efforts in pruning, or in persuading the property owner across the road and to the north to prune, a tree that would otherwise interfere with the view of the headland. Mr McPherson readily admitted that he has an agreement with the property owner across the road for pruning the tree to which Mr Alper referred. Because of this pruning, that tree does not obstruct a view, but if it were not pruned it would only obstruct a view of the headland, leaving the majority of the broad view available.

21. Mr Alper argued that Mr McPherson’s view does not include any significant area of land-water interface. If his trees obstruct the distant headland, he argued that the view cannot be sliced up into its varying components, as per the Court’s finding in Haindl v Daisch [2011] NSWLEC 1145 (Haindl).

22. I find that all the views identified above are severely obstructed by trees in the hedge. I have assessed the degree of obstruction qualitatively, and find that for each view the obstruction is greater than ‘moderate’ but less than ‘devastating’. This is a result of the dense screen formed by trees in the hedge, and their proximity to Mr McPherson’s dwelling.

23. Trees in the hedge completely obstruct the outlook from the kitchen window (W8), even if, because of the window’s high sill, that outlook is principally the sky and possibly some of the distant landscape. The obstruction is severe.

24. Trees in the hedge obstruct most of the view available from the first-floor bedroom (W7) such that I find the obstruction of the view is severe.

25. The eastern view from W11, the first-floor sunroom, is mostly obscured by the trees such that the obstruction is severe.

26. I find too that the northern and northwestern view from the first-floor sunroom and balcony is severely obstructed by trees in the hedge. Mr McPherson’s dwelling has clearly been designed to maximise the view of the water and distant landscape including water and a headland, all the way to Botany Bay National Park. While the closer landscape view directly to the north remains available, the valued elements are obstructed by the trees. This is not an exercise in slicing up the view to find that one small part of an overall view is severely obstructed; rather it recognises that the overall view is severely impacted as a result of its most valued elements being obstructed. Moore SC and Hewett AC considered a view and its parts in Haindl (at [25], [26]):

“25 This comment, implying multiple views from a single viewing point, is in our opinion, a significant misconception of the framework of the statute. Whilst it is self-evident that, from differing viewing locations on a property, there will be different views and that, if there be obstruction of some or all of those views by a hedge, the jurisdictional prerequisite that such obstruction must be severe, required by s 14, must be tested for each of those views prior to embarking on the balancing consideration concerning the interests of the hedge owner required by s 14 or the consideration of any aggregate view benefited to the applicants' property, this being a matter required to be considered as a consequence of s 14.

26 However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of obstruction of the view from a particular viewing location on some incremental, slice by slice basis.”

27. I agree with and adopt this approach. If a view from one viewing point is sliced up, and a part of that view, such as a park, is severely obstructed by a hedge, the Court should not consider that alone as grounds for finding the view obstruction is severe. However, as per the first step of Tenacity’s view-sharing principle (at [26]), it is widely recognised that some parts of a view are more highly valued than other parts:

“26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.”

28. Mr McPherson argues, and I accept, that the most valued parts of his view from his first-floor sunroom are obstructed by trees in the hedge, and this equates to a severe obstruction of the overall view from there.

Balancing the parties’ interests in relation to views

29. The matters at s 14F of the Trees Act that are relevant include:

…

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.

…

30. The view from the kitchen through W8 is a minor view when the entire dwelling is considered. The view itself has no particular features; the window is raised, limiting the landscape view. The outlook might be pleasant, but one is unlikely to linger here with the purpose of enjoying the view. By itself, the desirability of restoring this view might not justify interfering with the hedge.

31. The view from the first-floor bedroom through W7 is subordinated by the limited use of this room during daylight hours and its minor importance when the whole dwelling is considered. Again, the desirability of restoring this view, on its own, might not warrant interfering with the hedge.

32. Coming to the first-floor living room, this part of the dwelling has been designed to maximise the view and can be expected to receive regular use. The benefits of restoring the view are significant.

33. Turning to the various potential benefits of the trees referred to in s 14F of the Trees Act, they provide some amenity and privacy for Mr Alper. Other solutions for privacy are likely to be available. The trees have no significant environmental value but they provide some ecosystem services including shading and cooling. Mr Alper opined that the trees reduce water run-off from Mr McPherson’s property onto his own. Without clear evidence supporting this, I prefer Mr McPherson’s submissions regarding the stormwater drainage provided on his property and the lack of any run-off.

34. Pruning the trees to the extent required to restore the view would adversely impact their amenity value. They have been left unpruned, reaching a height of around 8 metres – reducing them to 4 metres or less, as required, would leave the trees with brown, desiccated tops. The species does not respond well to such pruning. Furthermore, maintaining the hedge at a given height, with regular pruning required along its top and both east- and west-facing sides, would be an onerous task, difficult to achieve, resulting in a situation that would be likely to lead to ongoing disputes. To my mind, remedying the obstruction would best be achieved by removing the trees rather than pruning them. If tree removal is to be the outcome, an order would also need to be made regarding any replanting, so as to prevent the issue recurring.

35. There would be little environmental loss if the trees are removed. The main impact would be to Mr Alper’s privacy and amenity. Having viewed the properties and the hedge, and with consideration of Mr Alper’s submissions on these matters, I find the benefits of restoring Mr McPherson’s views outweigh any loss to Mr Alper that would result from removal of the trees.

Orders

36. The Court orders:

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

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove trees 1–12 as identified in the application (‘the tree works’). The tree works are to be done in accordance with AS4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016.

3. Should the respondent replant a hedge along the length of the boundary where the trees are removed, the hedge must be of a species that reaches no more than 3 metres at maturity.

4. The exhibits are returned, except for Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 16 May 2024