Schulze v Russell

[2022] NSWLEC 1747

Land and Environment Court

New South Wales

Medium Neutral Citation:

Schulze v Russell [2022] NSWLEC 1747

Hearing dates:

08 December 2022

Date of orders:

08 December 2022

Decision date:

08 December 2022

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight or views – frivolous application

Legislation Cited:

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

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Hinde v Anderson & anor [2009] NSWLEC 1148

Tooth v McCombie [2011] NSWLEC 1004

Category:

Principal judgment

Parties:

Lynette May Schulze (Applicant)
Jones Russell (Respondent)

Representation:

L Schulze (Self represented) (Applicant)
J Russell (Self represented) (Respondent)

File Number(s):

2022/230820

Publication restriction:

Nil

Judgment

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

Background

1. Lynette Schulze, the applicant, occupied her property in Port Macquarie in 1980, while the respondent, Jones Russell, purchased and occupied his property about 4 years ago, but now leases it to tenants. The parties share a north-south rear boundary and the applicant’s land is to the west of the respondent’s property.

2. The trees comprise a row of about seventeen Syzygium sp. (Lilly Pilly) (the trees), which are shown at question 2 of the Tree Dispute Claim details (Exhibit B) to be growing parallel with and adjacent to the common boundary, on the respondent’s land. The applicant noted that the trees were planted in 2018 and were about 2.5 metres (m) tall.

3. Ms Schulze nominated four windows (W) for her claim of severe obstruction of sunlight, with W1 – W3 facing east towards the respondent’s property, and W4 facing north. W1 is at the northern end of the applicant’s wide rectangular dwelling, W2 is from the adjacent room, while W3 is in a room on the dwelling’s south-eastern corner.

4. For the applicant’s claim of severe obstruction of views from a dwelling, W1 is viewing point V2, W2 is viewing point V3, W3 is viewing point V4, while V1 is from a patio between W2 and W3, which connects to the dwelling’s kitchen/ living area. All viewing locations face towards the east and the applicant’s view is gained over the roof of the respondent’s dwelling.

5. Ms Schulze submitted that in the past she had kept the trees trimmed to near the height of the fence, but the respondent’s tenants desire increased privacy and want the trees to grow taller. Mr Russell submitted that he would prefer that the trees grew to a height of about 1.5 m above the fence height.

6. In her application, Ms Schulze claimed that the respondent’s tenants “are verbally and physically aggressive when I have attempted to cut the top of the hedge”. While Mr Russell had granted the applicant the right to prune the height of the hedge after he began leasing the property and ceased cutting the hedge himself, Ms Schulze claimed that this was becoming impossible due to the respondent’s refusal to trim the hedge, and because of her diminishing physical capacity to undertake the works.

7. As a consequence, Ms Schulze 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:

Top of the hedge to be trimmed to fence height every 3 months, or

Hedge to be removed.

Framework

8. 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 windows of a dwelling, or of views from 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

9. The hearing took place onsite. Mr Russell had not attended preliminary hearings with Registrars on 19 September 2022 and 14 November 2022, and nor did he initially attend the final hearing. As it is in the interest of both parties to attend the hearing and to make submissions, I spoke to the respondent at his workplace by telephone, and he attended the final hearing soon after. I brought my own arboricultural expertise to the matter.

10. The trees were growing in an uninterrupted row. They were planted at close and regular spacings with the appearance of a hedge. Though the trees’ main foliage averaged only about 2 m tall, there was about 600mm of wispy regrowth above the main body of foliage, resulting in the hedge height reaching about 2.6 m, about 0.8 m above the fence line. Ms Schulze considered this too high to satisfy her requirements.

11. Ms Schulze was particularly concerned about the future impact of the trees as the canopies of other Lily Pilly’s growing in a side neighbouring property to the north of her dwelling formed broad domes about 8 m tall which were likely to significantly block winter sunlight to W4, a large north facing window.

Jurisdictional requirements

12. 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?

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

14. 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).

15. Though the trees reached a height of only about 2.6 m, they nonetheless rose to a height of at least 2.5 metres and were planted so as to form a hedge, thus engaging s 14A(1) of the Trees Act.

16. 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:

(a) sunlight to a window of a dwelling situated on the 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.

Did the applicant make a reasonable effort to reach agreement?

17. 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 details of attempted contact with the respondent, and copies of letters to the respondent from a Community Justice Centre included in the application, provides satisfactory evidence to engage s14E(1)(a) of the Trees Act. I am also satisfied that the applicant has given notice of the application in accordance with s 14C, such that s14E(1)(b) of the Trees Act has been engaged.

Are the obstructions of sunlight or views severe?

18. The next step is to assess the severity of the obstruction of sunlight to a window of the applicant’s dwelling and views from the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

19. 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.

Obstruction of sunlight to a window of a dwelling

20. The trees were located about 10 m east of the applicant’s dwelling beyond a gently downward sloping lawn. Even in the early morning after sunrise, the hedge was unlikely to cast any shadows on the applicant’s east facing windows as fairly tall trees in the mid distance further east of the respondent’s dwelling formed a barrier to sunlight for about the first hour of each day. After this time, the hedge would shade only the adjacent lawn.

21. In winter, when the sun’s diurnal arc is low in the northern sky, the 3 established Lily Pillys growing close to the applicant’s northern boundary would likely severely obstruct sunlight to the applicant’s north facing W4, but the hedge is not responsible for any of this sunlight obstruction.

22. Therefore, I am not satisfied that the hedge caused any obstruction of sunlight to the applicant’s nominated windows, and thus s 14E(2)(a)(i) is not engaged.

Obstruction of views from a dwelling

23. From any of the nominated viewing spots (V1-V4) along the east side of Ms Schulze’s dwelling, views of established native trees, and native and exotic palms, are readily available over the respondent’s roof and that of his neighbours further to the east. These trees comprise the view that Ms Schulze desires and wishes to retain, but the hedge is sufficiently short that it causes no obstruction whatsoever to the applicant’s views.

24. Objectively, the view would be improved if the hedge was about 700mm higher as it would then largely block and soften the relatively harsh visual impact of the respondent’s roof, without impinging on the view of trees in the mid-distance. There is no remedy available under the Trees Act for obstruction of sunlight to a garden, or of views from a garden.

25. Consequently, I am not satisfied that the hedge is obstructing any views from the applicant’s dwelling, and therefore s 14E(2)(a)(ii) is not engaged.

26. Had I determined that the obstruction of sunlight to the applicant’s dwelling, or views from the dwelling, as a consequence of any or all of the trees in the hedge constituted a severe obstruction, thus engaging s 14E(2)(a), the Trees Act requires me to 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.

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

28. Section s 14F(l) considers, amongst other elements, the contribution of the trees to privacy. Both Mr Russell and his tenants deem the hedge to be important for privacy, particularly in their back yard, and this is a common and reasonable consideration.

29. The applicant’s concern about future obstruction of sunlight and views is not relevant. While s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling, or any view from a dwelling, the use of the word “are” in s14E(2)(a) requires the trees, the subject of the application, to be severely obstructing sunlight or views at the time of the hearing, notwithstanding that sunlight obstruction at the winter solstice may also be considered. See Tooth v McCombie [2011] NSWLEC 1004 at pars [14]-[15].

Conclusion

30. The applicant’s nominated district views of native and urban vegetation were not obstructed by the hedge, and nor was sunlight to nominated windows obstructed by the hedge. The hedge was located beyond a sloping lawn at least 10 m east of the applicant’s dwelling.

31. It appeared that Ms Schulze disliked the conduct of the respondent’s tenants, and that the respondent would not yield to the applicant’s preferences regarding management of the hedge.

32. It should have been obvious to the applicant that the hedge did not obstruct any sunlight to windows of her dwelling nor any views from her dwelling. I acknowledge that the applicant’s primary concerns were obstructions that may occur if the hedge grows much taller in the future, but nonetheless, this application has wasted the respondent’s time, and that of the Court, along with public resources.

33. While the applicant expressed concern about future obstruction of sunlight or views resulting from the trees growing much taller, there is no scope under the Trees Act to make orders based on hypothetical future circumstances. Should the situation change, and such concerns eventuate, another application can be made (see Hinde v Anderson & anor [2009] NSWLEC 1148).

Orders

34. The orders of the Court are:

1. The application is refused.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 09 March 2023