Pollock v Sydenham

[2022] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pollock v Sydenham [2022] NSWLEC 1365

Hearing dates:

13 May 2022

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Orders of the Court are:

(1) The application is granted.

(2) Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse.

(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access into the applicant’s property be required to complete the tree removals, the applicant shall provide access to the respondent, or to her employed contractors who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondent, or her representative.

(5) Should the respondent wish to replant a screen or hedge to replace the Cupressus torulosa hedge, all replacement planting shall be located at least two metres from the parties’ common boundary, all trees or shrubs chosen shall have a fastigiate or columnar form, and they should not exceed a height of five metres.

(6) Should such replacement trees reach a height approaching five metres, the respondent shall prune them, such that at no time in the future shall their height exceed five metres.

(7) All works shall be completed during reasonable working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – is the obstruction of sunlight severe – balance between sunlight and privacy – removal ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979

Interpretation Act 1987

Trees (Disputes Between Neighbours) Act 2006

ss 9, 14A, 14B, 14E, 14F

Uniform Civil Procedures Rules 2005 Sch 7

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Murphy v Moeskops (2021) NSWLEC 1686

Voeten & anor v Adams [2011] NSWLEC 1106

Wright v Jonjil Pty Ltd [2016] NSWLEC 1070

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)

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

Category:

Principal judgment

Parties:

John James Pollock (First Applicant)
Leonie Helen Pollock (Second Applicant)
Leigh Anne Sydenham (Respondent)

Representation:

Counsel:
C Koikas,(Applicants)
K Cutting (Solicitor) (Respondent)

Solicitors:
McMahon Vincent Lawyers (Applicants)
Narooma Law (Respondent)

File Number(s):

2021/350930

Publication restriction:

No

Judgment

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

Background

1. The trees pertinent to this application are located in the scenic south coast town of Narooma. Ms Sydenham, the respondent, purchased her initial property in 1990, and in 2010 purchased and integrated the adjoining block. The overall block is deep and it slopes quite steeply down to the rear.

2. In 2009, Ms Sydenham planted 63 trees around the perimeter of her property, including 11 Cupressus torulosa (Bhutan Cypress) (the trees) along her western boundary, which she shares with the applicants, Mr and Mrs Pollock. The applicants purchased their land in 1987 and constructed and occupied their dwelling in 1988.

3. In May 2013, the applicants wrote to Ms Sydenham, noting their concern about the close proximity of the trees to their house. At this time, the Cypress were said to be about four metres tall, and the Pollocks’ were requesting reduction and maintenance of the height of the trees.

4. Regrettably, the relationship deteriorated quickly and various further correspondence between the parties in 2013 was conducted by their solicitors.

5. Over the intervening years the Cypress trees have grown taller and broader, until the applicants now say that the east facing windows of their dwelling receives severely obstructed sunlight for much of the day, as a result of the trees.

6. The applicants re-commenced contact with the respondent on 18 March 2021 via their Solicitor, again requesting pruning of the trees and ongoing maintenance at a significantly reduced height. Ms Sydenham’s response of 30 October 2021 included a refusal to contemplate reducing the height of the trees.

7. Consequently, the Pollocks submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees (Dispute Between Neighbours) Act 2006 (Trees Act) seeking the following orders;

1. Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF 3 horticulturist or arborist to remove the eleven (11) trees referred to in the application and located (at the respondent’s land), and remove all roots and grind or poison each of the stumps (whichever is the recommended option by the said horticulturist or arborist),

2. In the alternative:

1. within 30 days of the date of these orders, the respondent is to engage and pay for an AQF 3 horticulturist or arborist to remove the five (5) of the trees referred to in the application, being T2, T4, T6, T8 and T9, located (at the respondent’s property), and remove all roots and grind or poison each of the stumps (whichever is the recommended option by the said horticulturist or arborist); and

2. within 45 days of the date of these orders, and on an annual basis, the respondent is to engage and pay for an AQF 3 horticulturist or arborist to remove to prune each of the six (6) remaining trees being T1, T3, T5, T7, T9 and T11) to a height of not more than 5 metres, as well as prune all branches overhanging the applicants’ property.

3. The respondent to pay the applicants’ costs of the application.

8. Ms Sydenham resists the removal or pruning of the height of the trees. She notes that they protect and shade her animals, provide her with privacy from oversight by the applicants, and mitigate the impact of the applicants’ barking dogs, and cigarette smoke allegedly emanating from their property. The role of the trees in providing habitat for fauna and enhancement of local biodiversity is noted by the respondent and she highlights negative impacts on the trees’ health and longevity likely to result from heavy pruning, and the ongoing maintenance costs involved.

9. A major concern expressed by Ms Sydenham was the impact of bright night lighting at nearby Narooma Plaza. The respondent notes ongoing sleep disruption as a result of this light, and she submitted that her longer-term plans are for the trees to continue to grow, so as to reach a height where they block this light emanating from Narooma Plaza. She also suggests the trees’ impact on sunlight access for the applicants is much less grave than they claim.

10. The respondent’s proposed alternative orders are;

1. That pursuant to s 9 of the Trees Act the respondent attends to the regular pruning of the trees from time to time and at all times required to eliminate any overhang to the applicants’ property.

2. That the applicants pay the respondent’s cost of defending this application.

Framework

11. The Court cannot make orders under Part 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 a severe obstruction of views from an applicant's dwelling. If so satisfied, I must consider a range of matters surrounding the benefits of the trees, such as the privacy they provide.

Onsite hearing: observations and submissions

12. Mrs Pollock attended the hearing, represented by Mr Koikas of Counsel, while Ms Sydenham attended with her Solicitor, Ms Cutting. The 11 trees, growing close together in an uninterrupted row with spacings of about 1.8 metres (m), were inspected initially. They are about 800mm from the common timber paling boundary fence, with heights ranging from about 6.5 to about 10 metres. I bring my own arboricultural expertise to the matter, in particular regarding the characteristics of this species.

13. Accessible low foliage on the applicants’ side of the trees had previously been roughly pruned by the respondent and was also suppressed by an absence of light. However, very little light could penetrate from the respondent’s side, as a consequence of the dense outer foliage, the complex scaffolds of branches, and the considerable thickness of the hedge.

14. The Court moved to the living room in Ms Sydenham’s dwelling, from where the trees and Narooma Plaza could be viewed. Ms Sydenham noted seeking a ‘sweet spot’ where the Plaza lights would be blocked by the top of the trees located lower in her yard and distant from her dwelling, but that an extensive view of the horizon and sky would remain. The trees would need to grow much taller than their current height to achieve this ‘ideal’ for the respondent.

15. About 10 to 15 metres west of her dwelling, Ms Sydenham’s had a second, ‘internal’ hedge, comprising Leyland Cypress trees, and growing roughly parallel to the trees along the rear common boundary. Viewed from the respondent’s living room, this dense closer hedge appears to provide considerable privacy for Ms Sydenham and offers more scope to rapidly improve her protection from Narooma Plaza night lighting, by allowing this proximal hedge to grow taller.

16. Ms Sydenham rejected this suggestion on the basis that she can complete hedge maintenance independently at its current height but would need to pay for its maintenance, if it was to grow taller.

17. Subsequently, the impact of the trees was inspected from within the applicant's property. Direct sunlight was heavily obstructed from east facing windows within the dwelling. As noted in the application, this was due to the cumulative impact of the trees’ height, their close proximity to the windows, and the density of foliage and significant width of the barrier formed by the trees.

18. Four windows were considered. W4 is a bedroom window, the only one in the room. W2 and W3 are smaller bathroom windows, while W1 is one of two windows in the main bedroom, with the other window facing north. Sunlight was heavily restricted to each of W2 – W4. Even in the main bedroom with W1, morning light to its north facing window is heavily obstructed by the hedge which extends north of the applicants’ dwelling, and progressively rises up with the increasing slope of the land.

19. The applicants procured a report from consulting arborists, AJ and RM Norman, who satisfied the requirement of acknowledging and agreeing to be bound by the Expert Witness Code of Conduct, contained in Sch 7 of the Uniform Civil Procedures Rules 2005. This report provided a sound assessment of the trees.

20. The applicants submitted that the bedroom with window W4 should be considered as a living room based on how it is used by an adult, rather than simply on its designation as a bedroom, and cited Voeten v Adams [2011] NSWLEC 1106 to support this.

21. To the contrary, the respondent submitted that all windows noted by the applicants should be attributed low importance as they are not living areas, noting Murphy v Moeskops (2021) NSWLEC 1686 and Wright v Jonjil Pty Ltd [2016] NSWLEC 1070 as relevant precedents.

22. Ms Cutting also criticised the applicants’ shadow diagrams, provided in the arborist report, as inadequate as they were drawn from a free ‘app’. She also stressed the importance of the trees for the respondent, in maintaining privacy, and the ecological, scenic, and other aesthetic values that the trees provide.

Jurisdictional requirements

23. 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].

Do the trees form a hedge?

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

25. 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).

26. These trees were planted so as to form a hedge in 2009 and currently average about 8 metres in height. Therefore, s14A(1) is satisfied for this hedge.

27. 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.

28. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. They have satisfied this requirement by communicating about their pruning requests with the respondent, verbally and in writing since 2013, both directly and through their solicitors.

29. The next step is to assess the severity of the obstruction of sunlight to the applicants' dwelling as a consequence of any or all of the trees in the hedge.

30. 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.

Findings

31. In considering the severity of sunlight obstruction, the Court may take guidance from criteria used by local government in Development Application (DA) assessment, whereby obstruction of direct sunlight to more than 50% of a living room window for more than 3 hours between 9am and 3pm in mid-winter, is considered a threshold for intervention. Under the jurisdiction of the Trees Act, only one window need be so impacted.

32. Under the circumstances here where the affected rooms are not living areas, the parties’ focused on the nature and role of the applicants’ affected rooms. However, given that the hedge allows only minor occasional dappled sunlight penetration to any of the applicants’ nominated windows, it is more appropriate to initially consider the scope and purpose of Pt 2A of the Trees Act.

33. The Interpretation Act 1987 permits me to refer to relevant material to assist in interpreting the Trees Act. Here I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) (‘the Review’) for assistance with interpreting “severely obstructing sunlight to a window” (s 14E(2)(a)(i)).

34. On page 39 the Review describes the scope 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 viewsand 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)

35. The Bhutan Cypress hedge is directly adjacent to the applicants’ dwelling, creating a tall dense screen, similar to a wall in its effect. It severely affects sunlight penetration to the Pollocks’ dwelling and severely affects enjoyment of their property. The sunlight now obstructed was available to the applicants at the time they purchased their property.

36. I am therefore satisfied that the Bhutan Cypress hedge enlivens the Court’s jurisdiction at s 14E(2)(a)(i).

37. As to the issue of the relative importance of windows, I turn to Commissioner Fakes’ analysis of this question in Voeten & anor v Adams [2011] NSWLEC 1106. Having accepted “the respondents' position that each window should not be given equal importance” at [43], the Commissioner, at [44], considered the use of a bedroom (W2) by a school age child in the following terms;

“The bathroom window is small, with the lower half frosted. It is a room not occupied for long periods of time. With respect to Mr Murrell's arguments concerning W2, we consider that for some 13 years, between the hours of 9 am and 3 pm for 5 days per week for up to 40 weeks per year, children are attending school. We also consider it unlikely that the bedroom would be occupied for the extent of those hours during non-school times. We also note that W2 is quite small and the room has a skylight. We are not persuaded that Mr Murrell's assertions should be given weight in this instance.”

38. Here, the circumstances are different. For the bedroom with W4, the window is the only source of sunlight. The obstruction of sunlight by the hedge is grave and severe, and I don’t doubt that the room is cold and damp in winter, as the applicants claim. The room is used as an adult’s daytime living room simultaneous to its use as a bedroom, and this is likely to remain the case indefinitely. In this context, I am satisfied that this room should be attributed higher significance than an ‘average’ bedroom.

39. Considering the respondent’s submissions, neither Murphy v Moeskops [2021] NSWLEC 1686 nor Wright v Jonjil Pty Ltd [2016] NSWLEC 1070 provided a basis for me to form an alternative conclusion. Further, the trees’ impact on the applicants is sufficiently extreme and unambiguous that the adequacy of shadow diagrams is not a decisive element.

40. With respect to the respective parties claims for the costs of making and defending this application, Commissioners do not have the power to determine such claims. Rather, they must be made via a Notice of Motion to the Court which is heard by the Registrar or a Judge.

Balance of relevant matters

41. As the requirements of s 14E(2)(a)(i) have been satisfied, there is a need to consider the balancing of interests required by 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.

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

1. The trees are located about 800mm from the common north-south boundary and those growing beside the applicants’ house are less than 2.5m from it (subs (a)).

2. The applicants’ house preceded the planting of the trees (subs (b)), which have grown to their current average height of 8 metres while the applicants have owned their dwelling (subs (c)).

3. Interference with the trees would, in the absence of s 6 (3), require authorization under Eurobodalla Shire Council Tree Preservation Code, prepared pursuant to the Environmental Planning and Assessment Act 1979 (subs (d)).

4. The trees have no obvious historical, cultural, social or scientific value (subs (e)), nor are they likely to contribute to the local ecosystem and biodiversity as a food source, though they may provide habitat (subs (g)).

5. The trees provide a contribution to the natural landscape and scenic value of the land on which they are situated (subs (h)) and amenity in Ms Sydenham’s yard. Indeed, they are very healthy, lustrous and attractive. The trees are relatively inconspicuous in terms of public amenity (subs (i)) but are likely to contribute to soil stability and absorption of excess water (subs (j)).

1. With respect to pruning (subs (k)), I agree with the arborists’ opinion that heavy repeated pruning of the Cypress trees, as required to provide and maintain a reasonable level of sunlight access to the applicants’ dwelling, would likely lead to minimal vertical regrowth emerging from large diameter pruned trunks. Though foliage on the eastern (respondent’s) side would most likely continue to grow, considerable ongoing maintenance would be required of the respondent, and the applicants would retain an ugly, woody hedge close to their dwelling, along with the spectre of possible future damage to their dwelling as a result of proximal roots. The respondents primary benefits of privacy, and amenity value based on the trees’ natural shape and form would also be eroded by this option. For all these reasons, I consider tree removal and replacement to be a superior option to heavy pruning.

2. The hedge makes a significant contribution to the respondent’s privacy (subs (l)), the desire for which is not insignificant. However, the presence of the second (Leyland Cypress) hedge, at a much higher elevation at the edge of the respondent’s house garden, provides a duplicate privacy barrier for her house and immediate surrounds, if not further down the back of her yard. The opportunity also exists for Ms Sydenham to maintain this second hedge at a greater height than at present to address the issues of night light from Narooma Plaza. Though the respondent rejected this due to the maintenance costs required, this is a more realistic solution than for the Bhutan Cypress hedge to provide such a barrier to light 10 or 20 years in the future.

Conclusions

43. The trees provide important benefits for the respondent, but they have severe negative impacts on the applicants, mainly because of their location, close spacing and species.

44. Regardless of Ms Sydenham receiving expert advice, this was a poorly conceived planting. While an owner may plant trees on their land as they wish, it is usual to consider their potential impact on neighbours. These trees were planted less than 2m apart, about 800mm from the common boundary, within 2.5m of the applicants’ dwelling, in a large open yard with ample space further from the boundaries.

45. As noted by the arborists, Bhutan Cypress are a long-lived species and I concur with its description of the trees as semi-mature in age. They are a large tree, it is not uncommon for them to reach 100 years, and these are merely 13 years old. Already, the trees’ trunks range in diameter at breast height (DBH) from about 150mm to 230mm, and DBH of 600-750mm is not unusual at maturity. Certainly, the 20m height expectation, noted in the arborists report, and supported by local examples, appears reasonable.

46. To achieve Ms Sydenham’s stated aim of these trees blocking night light from Narooma Plaza, a height approaching 20 metres would be required, and with it, much greater upper canopy encroachment over the applicants’ dwelling, which would exacerbate sunlight obstruction.

47. The trees form a wall-like screen that already cause a severe obstruction to at least four of the applicants’ windows, especially during winter, when light and warmth from the sun is generally most valued. The most relevant windows are those in two bedrooms, particularly W4.

48. Without intervention, the impact will increase as the trees continue to grow. The hedge denies the applicants of reasonable amenity. Their request for relief from the hedge’s impacts outweighs any reason the respondent may have for not pruning or removing the trees.

49. This is a species that is principally planted and grown for hedging, which, in urban areas, then normally requires regular pruning. The respondent’s aim of allowing the trees to continue to grow to their full size, this close to the applicants’ windows, ignores the obvious negative impacts this would have on her neighbours.

50. Being located to the north-east and east of the applicants’ dwelling, all trees in the hedge have the potential to contribute to sunlight obstruction. Therefore, the following orders apply to the entire hedge.

51. When orders are made in favour of an applicant, it is normal for the respondent to carry the financial burden. When Mrs Pollock brought the trees to the respondent’s attention in 2013, little loss of amenity had been incurred, but it was entirely foreseeable. Given that some nine years have elapsed without a positive intervention from Ms Sydenham, there is no reason the respondent should not pay for these works.

Orders

52. The orders of the Court are:

1. The application is upheld.

2. Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse.

3. The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. Should access into the applicant’s property be required to complete the tree removals, the applicant shall provide access to the respondent, or to her employed contractors who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondent, or her representative.

5. Should the respondent wish to replant a screen or hedge to replace the Cupressus torulosa hedge, all replacement planting shall be located at least two metres from the parties’ common boundary, all trees or shrubs chosen shall have a fastigiate or columnar form, and they should not exceed a height of five metres.

6. Should such replacement trees reach a height approaching five metres, the respondent shall prune them, such that at no time in the future shall their height exceed five metres.

7. All works shall be completed during reasonable working hours.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 08 July 2022