Ruser v Johnson

[2021] NSWLEC 1545

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ruser v Johnson [2021] NSWLEC 1545

Hearing dates:

16 September 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [17]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – lilly pilly – obstruction of sunlight – whether the obstruction is severe – privacy – orders for pruning and maintaining trees in the hedge

Legislation Cited:

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

Cases Cited:

Butler v Taylor [2016] NSWLEC 1427

Lutze v Graham [2012] NSWLEC 1075

Category:

Principal judgment

Parties:

Bernd Ruser (First Applicant)
Kathleen Ruser (Second Applicant)
Simon Francis Johnson (First Respondent)
Louise Michelle Johnson (Second Respondent)

Representation:

B Ruser (Litigant in Person) (Applicants)
S Johnson (Litigant in Person) (Respondents)

File Number(s):

2021/159197

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Bernd and Kathleen Ruser (‘the applicants’) live at their double-storey Riverview dwelling. The main living room on their lower level is only a metre or so from their northern boundary. The Rusers’ neighbours, Simon and Louise Johnson (‘the respondents’), planted a lilly pilly hedge (‘the trees’) along their southern boundary, being the common boundary shared with the applicants. The Rusers complained that the trees obstruct sunlight to their living room windows. After the Johnsons refused the Rusers’ request to prune the trees, the Rusers 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 trees to be maintained at a height of 2.5 metres.

Framework for this decision

2. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, relevant issues at s 14F in this matter include privacy, amenity, and the response of the trees to pruning.

3. If orders are made, they might be those sought by the applicants, or they might be such orders at s 14D as the Court otherwise sees fit to remedy, restrain or prevent (in this matter) a severe obstruction of sunlight to windows of the applicants’ dwelling.

The hearing

4. The hearing took place online via audio-visual means. I informed the parties that the Court would arrange a later onsite inspection if, at the end of the hearing, I thought that would assist this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. I bring my own arboricultural expertise and experience to making this decision.

The applicants made reasonable effort

5. Mr Ruser discussed overlooking issues with Mr Johnson in 2018, wanting a small addition to the fence’s height. When the Johnsons planted the hedge instead, the Rusers discussed their concerns with the Johnsons. They sent emails and tried to arrange mediation, without success. I am satisfied that their efforts were reasonable.

The trees form a hedge

6. In their application, the Rusers show 13 weeping lilly pilly trees (apparently Syzygium ‘Cascade’) planted in a straight line at close and regular spacings on the Johnsons’ property adjacent to the common boundary. The trees are more than 4 metres tall. The Johnsons do not dispute that the trees form a hedge. They are therefore trees to which Pt 2A of the Trees Act applies.

The trees severely obstruct sunlight to the applicants’ windows

7. The Johnsons’ land is higher than the Rusers’ land. A paling fence runs along the boundary. Mr Ruser thought the fence is approximately 2 metres tall. The base of the fence is at the height of land on the Johnsons’ side of the fence, but approximately a metre from the fence the Johnsons have raised the level with a retaining wall so that the level of their yard and pool is above the base of the fence. The trees are planted in the narrow strip of land, still at the original level, next to the fence. The land drops on the Rusers’ side of the fence, with the fence sitting atop a retaining wall. Therefore the Rusers’ north-facing living room windows are partly above and partly below the top of the fence. The fence is only a metre or so from the windows.

8. The Rusers commissioned and filed shadow diagrams. These diagrams show the situation only at the winter solstice. The fence shades the lower part of their windows and the trees shade the upper parts. Photos filed by the Rusers confirm this situation. Mr Ruser submitted, and I accept, that closer to the equinox, with the sun higher in the sky, the percentage of window area shaded by the fence decreases while that shaded by the trees increases.

9. The Johnsons obtained a brief report from arborist Russell Kingdom, who described trees of this species as excellent screening plants. Mr Ruser submitted that, for the same reasons they are excellent for privacy screening, the trees are also excellent at screening out sunlight. They already obstruct most of the available light to their windows. Mr Johnson clearly declared his intention to let the trees grow taller, to the height of another hedge on their western boundary. Mr Ruser submitted that the sunlight obstruction will only become more severe as the trees become taller and denser.

10. The photographs and shadow diagrams show that the trees obstruct more than 50% of available sunlight at the winter solstice. It follows that their impact on direct sunlight to these windows is even greater for several months either side of the solstice. I accept that the obstruction is severe.

Matters to consider

11. I have considered the matters at s 14F and discuss the relevant ones below.

12. The trees are close to the common boundary and close to the Rusers’ living room windows. Mr Ruser submitted that any benefits the trees provide, including screening for privacy, could be provided by a similar hedge closer to the Johnsons’ pool without impacting the Rusers. I find this persuasive. The Johnsons have not considered impacts on the Rusers when planting a hedge for their own privacy.

13. Council consent would be required to remove or prune the trees. Mr Johnson referred to this, saying Council does not require them to control their hedge and in fact the trees are protected. There are common misunderstandings around the Trees Act and its relationship to other Acts. Mr Johnson even referred the Court to non-existent Acts. In these proceedings, if the Court finds that orders should be made to interfere with the trees, Council consent is not required for carrying out those orders. Another misunderstanding, perhaps present in the Rusers’ mind, is that the Trees Act limits the height of hedges to 2.5 metres. In fact, in the Trees Act there is no maximum limit to hedge height. The height of 2.5 metres is simply a jurisdictional requirement before the Court can make any orders – the Court has no jurisdiction over shorter hedges.

14. Due to the different land levels on these properties, there is no overlooking issue from the Rusers’ lower floor to the respondents’ property. Windows on the Rusers’ upper level have shutters. Mr Ruser suggested that expecting complete privacy in this suburban setting was unreasonable. The Rusers are not too concerned about overlooking from the Johnsons’ property. And, as Mr Ruser pointed out, all the trees’ privacy benefits could be provided by a hedge further from the boundary without impacting the Rusers.

15. Mr Johnson referred the Court to decisions where tree pruning was not required. As Mr Ruser pointed out, the circumstances in those cases were different to those in this matter. Each situation has a unique set of circumstances. I did not find the other cases relevant here: in Lutze v Graham [2012] NSWLEC 1075 there was no obstruction of sunlight; in Butler v Taylor [2016] NSWLEC 1427 the windows did not face north and were not to a living room.

16. Mr Ruser has suggested maintaining the trees at a height of 2.5 metres. The species would tolerate this pruning and maintenance. I find the suggested height reasonable, but will order pruning in the first instance at a lower height of approximately 2 metres to allow for regrowth to be maintained (rather than repeated cutting of woody branches), and then annual maintenance at approximately 2.2 metres to allow for regrowth throughout the year, which is likely to reach beyond 2.5 metres. Hedges planted along boundaries often burden neighbours with the task of pruning branches and foliage growing across the boundary. These orders should also minimise any onus on the applicants for ongoing pruning of the hedge along their boundary by keeping foliage within reasonable reach. For simplicity, I will use the fence height as a reference in the orders.

Orders

17. For the reasons set out above, the Court orders:

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

2. Within 30 days of the date of these orders, the respondents (or a suitably experienced and insured horticultural contractor engaged by the respondents) are to prune all trees in the hedge along their southern boundary, being the common boundary shared with the applicants, to the height of the adjacent fence along the common boundary, stepping up or down as the fence does.

3. In September of each subsequent year beginning 2022, the respondents (or a suitably experienced and insured horticultural contractor engaged by the respondents) are to prune all trees in the hedge along their southern boundary, being the common boundary shared with the applicants, to a height 200 mm greater than the adjacent fence along the common boundary, stepping up or down as the fence does. If the fence is removed or altered in future, the trees are to be pruned to a height of 2 metres above ground level.

4. The respondents are to give the applicants at least 5 days’ notice of the time and date of each pruning event in orders (2) & (3).

5. The applicants are to allow any access necessary for the works in orders (2) & (3) to be completed during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 21 September 2021