Morgan v Bennett

[2022] NSWLEC 1744

Land and Environment Court

New South Wales

Medium Neutral Citation:

Morgan v Bennett [2022] NSWLEC 1744

Hearing dates:

10 November 2022

Date of orders:

10 November 2022

Decision date:

10 November 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees pruned before hearing – other causes of sunlight obstruction

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Pts 2, 2A, ss 7, 14A, 14B, 14C, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

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

Category:

Principal judgment

Parties:

Jane Morgan (Applicant)
Paul Bennett (First Respondent)
Joanne Bennett (Second Respondent)

Representation:

J Morgan (Self represented) (Applicant)
P Bennett (Self represented) (Respondents)

File Number(s):

2022/221472

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

Background

1. Ms Morgan, the Applicant, and Mr and Mrs Bennett, the Respondents, enter their Allambie Heights properties from separate streets, and share a north – south rear boundary. Ms Morgan occupied her property in 2005 and added a second storey in 2008.

2. The Applicant claims that twelve trees planted close to the common boundary in the Respondents’ yard severely block sunlight to nominated windows of her dwelling, particularly during winter. Ms Morgan also claims that the trees lose their leaves at least 2-3 times each year for a period of about one month, necessitating daily sweeping of her backyard to clear the “overwhelming” quantity of leaves, which also “clog up the pool cleaner”, and “are a fire hazard”.

3. The trees comprise nine Syzygium sp (Lilly Pilly), one Camellia sasanqua (Camellia) and one Callistemon sp (Bottlebrush) (the trees), planted in about 2013 - 2014 along the common boundary as well as one long established Lophostemon confertus (Brush Box) (tree 12) located near the north-eastern corner of the Respondents’ yard, but well clear of the common boundary.

4. When the application was made to the Court, the trees had grown tall and fairly broad. Based on photographs provided by the Applicant, they had reached a height of about 7- 8.5 metres (m). The Brush Box is about 13 m tall with a dense broad domed canopy, typical of the species.

5. The Applicant nominated three west facing windows (W1 – W3) and a glass door (D1) on the dwelling’s ground floor, and a further three west facing windows (W4 – W6) on the first floor, for assessment of obstruction of sunlight. The Applicant submitted that “no unobstructed sunlight is available in any of the windows on the western side of her dwelling”, and that W1 – W3 and D1 receive less than one hour of filtered afternoon sunlight during the whole year, including only about 15 – 30 minutes of filtered afternoon sunlight in winter. Ms Morgan also alleged that windows W4 – W6 received only about 30 minutes of sunlight.

6. As a consequence, Ms Morgan 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”), seeking the following orders:

Prune the hedge at a height of 2.5 metres, equivalent to the height of the top of the dividing fence.

Maintain the hedge by annual pruning at the end of each summer to a height of 2.5 metres, equivalent to the height of the top of the dividing fence.

Framework

7. 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. 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

8. The hearing took place onsite where Ms Morgan was self-represented, while Mr Bennett represented the Respondents.

9. Prior to the hearing, the boundary trees had been pruned by the Respondents, significantly reducing their height from about 8 m to a height of about 3.2 m at the northern end, progressively rising to a height of about 4.7 m at the southern end.

10. The Applicant was not satisfied that this height was sufficiently low to overcome her sunlight obstruction and re-iterated her preference that the tree height be reduced to about 2.5 m, in line with the height of the fence, as the Applicant sought the sunlight that she “used to have”.

11. The Applicant claimed that prior to 2020, the Respondents had pruned the boundary trees in response to her requests, albeit not as promptly as Ms Morgan would have preferred. After pruning the trees in 2021, the Applicant alleged that the Respondents refused to undertake further pruning because they desired increased privacy and relief from paying for the pruning. The Applicant made no further pruning requests in 2022 after this rebuttal.

12. The dwellings of both parties are two-storey. The Respondents value the trees for the privacy they provide in their dwelling and yard, and for their contribution to the garden. The Respondents acknowledged having allowed the boundary trees to get too big, but submitted that the Brush Box tree was the main cause of sunlight obstruction. Mr Bennett committed to trimming the trees “to a reasonable level” on a regular basis.

Jurisdictional requirements

13. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

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

15. Section 14A(1) states:

14A Application of Part

(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).

16. The trees were planted in an orderly row with fairly uniform spacings. They exceed 2.5 m in height, and thus s 14A(1) of the Trees Act is satisfied.

17. 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

(b) any view from a dwelling situated on the land,

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

18. Section 14E(1)(a) of the Trees Act requires the Applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by the Applicant provides satisfactory evidence to engage s 14E(1)(a) of the Trees Act, and I am also satisfied that the Applicant has given notice of the application in accordance with s 14C, such that s 14E(1)(b) of the Trees Act has been engaged.

19. The next step is to assess the severity of the obstruction of view from the Applicant’s dwelling as a consequence of any or all of the trees in the hedge.

20. Section 14E(2)(a) states:

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

…

(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.

21. With the trees having been heavily pruned to between about 3.2 m and 4.7 m high prior to the hearing, I am not satisfied that the hedge is the primary cause of obstruction of sunlight to the Applicant’s windows. Rather, obstruction of sunlight to windows is primarily caused by other factors.

22. As s 14E(2)(a) is coined in the present tense, assessment of obstruction of sunlight to a dwelling considers the circumstances at the time of the final hearing, but may also consider conditions likely at the winter solstice, when direct sunlight is often most restricted and most valued. In her application, Ms Morgan noted receiving “less than one hour of filtered afternoon sunlight during the whole year, including only about 15 – 30 minutes of filtered afternoon sunlight in winter”, and reported issues arising from excessive growth of mould.

23. As the Applicant’s nominated windows and door face west, they can only receive direct sunlight in the afternoon, as morning light to nominated windows is obstructed by the Applicant’s dwelling. Both floors of the Applicant’s dwelling, but particularly the ground floor, have broad eaves extending westward beyond the dwelling, which obstruct sunlight to the windows from midday to at least early to mid-afternoon.

24. The single element that most obstructs sunlight to the Applicant’s nominated windows and door, however, is the large Brush Box tree. This tree, located near the north-eastern corner of the Respondents’ yard, long predates the hedge and is a separate amenity tree. The Trees Act does not provide powers to remedy obstruction of sunlight or views caused by trees unless those trees are members of hedges, and the Brush Box tree is not.

25. Eight close-up aerial photographs lodged by the Applicant on 7 August 2022, display distinct shadows, typical during winter, that may be readily interpreted. The shadows are cast south-east of the north-south boundary line, at an angle of about 35 degrees from the boundary, suggestive of early to mid-afternoon.

26. The obstruction of sunlight to W2, W3 and D1 after early to mid-afternoon was caused by the Brush Box tree, as evidenced by its distinct shadow in various photographs. Based on the aerial photographs, the only sunlight obstruction that may be caused by the hedge is restricted to a few trees at the northern end, relates only to W1, and the photographs were taken prior to the tree pruning.

27. Long shadows cast by the roof of the Respondents’ north side neighbours’ dwelling shade at least the northern third of the Applicant’s back yard and shading extends east across the edge of the Applicant’s adjacent pool. In summer, when the sun’s arc is high in the sky and shadows are much shorter, this roof would not obstruct the sunlight to the Applicant’s windows, but the Brush Box tree would continue to do so.

28. Onsite, the Brush Box tree appeared to be growing vigorously with a dense foliage cover, largely attributable to high rainfall and improved environmental conditions experienced since early 2020. This would have progressively worsened the Applicant’s light obstruction after the prior drought, when the tree’s foliage would have been sparse with fewer, smaller leaves, allowing greater penetration of filtered light through to the Applicant’s dwelling.

29. The photographs also displayed that W4 – W6 on the first floor and the roof below were bathed in sunlight and were likely to have been from about 1pm after the sunlight obstruction caused by the overhanging eave had passed. Given this reality in winter, it appears likely that W4 – W6 would receive at least 2 hrs sunlight after about 1pm during long summer afternoons.

30. In summary, as the height of the hedge had been heavily pruned prior to the hearing, I am not satisfied that the hedge is severely obstructing sunlight to a window of the Applicant’s dwelling. Rather, obstruction of sunlight to the Applicant’s nominated windows is primarily caused by the Respondent’s Brush Box tree and the Applicant’s broad roof eaves.

31. As s14E(2)(a)(ii) of the Trees Act is thus not satisfied, I have no powers to make orders, so the application is refused.

32. Had I, however, determined obstruction of sunlight by the hedge to a window of the Applicant’s dwelling to be severe, thus engaging s 14E(2)(a)(ii), the Trees Act requires me to also consider the balancing of interests in s 14E(2)(b). This 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.

33. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F of the Trees Act is required.

34. Section 14F(l) considers, amongst other roles, the contribution of the tree to privacy. The Respondents attribute importance to the hedge’s contribution to privacy in their back yard.

35. Section 14F(m) considers anything, other than the trees, that has contributed or is contributing to the obstruction. Considering that the hedge height had been significantly reduced before the hearing, I found the hedge’s obstruction of sunlight to a window not to be severe, even at the winter solstice, because the obstruction of sunlight to the Applicants’ windows was primarily caused by broad overhanging awnings, and the Respondents’ Brush Box tree. Had they been absent, sunlight could have illuminated the nominated windows and door from midday to mid-late afternoon.

36. Section s 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case. The issue of leaves and other tree debris accumulating on outdoor surfaces, on roofs and in gutters, was submitted by the applicant to support pruning the hedge to the fence height. Though this issue is not explicitly considered under Pt 2A of the Trees Act, it is addressed under Pt 2 of the Trees Act in consideration of damage, and it is appropriate to note the Court’s position here.

37. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, Preston CJ states that this is not “damage to property on the land” within s 7 of the Act, and that “leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

38. In Robson, at [56], discussing the issue of nuisance, his Honour states that “mere encroachment is insufficient to complete a cause of action.”

39. The issue of the maintenance impost from falling tree debris is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], establishes the tree dispute principle:

“…

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

40. As a consequence of this grounds’ maintenance expectation regarding fallen leaves, fruits, seeds, twigs, bark or flowers, onto the roofs, into gutters or onto the ground, submissions in this respect do not invoke the jurisdiction of the Trees Act, notwithstanding that the Applicant may consider it to be “overwhelming”. Applications to the Court citing growth of mould as a basis for intervening with trees have been similarly considered under reasonable maintenance and dismissed, and there is nothing particular about the trees that renders them a fire risk.

Conclusions

41. While sunlight was obstructed to windows nominated by the Applicant, this was primarily caused by broad roof eaves and the Respondent’s large Brush Box tree. I was not satisfied that obstruction of sunlight as a result of the hedge would have been higher than minor, had the eaves and Brush Box been absent.

42. Unsurprisingly, the Applicant appeared frustrated that assessment of severity of obstruction of sunlight to a window must be based on the circumstances at the hearing rather than when she applied to the Court before the trees were heavily pruned.

43. While no re-application is possible if the Respondents honour their commitment to regularly prune the height of the hedge, but if the trees remain unpruned and grow strongly, and thus conditions change, a new application may be lodged with the Court.

Orders

44. The orders of the Court are:

1. The application is refused.

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 08 February 2023