Singh v Mammarella

[2021] NSWLEC 1095

Land and Environment Court

New South Wales

Medium Neutral Citation:

Singh v Mammarella [2021] NSWLEC 1095

Hearing dates:

10 December 2020

Date of orders:

2 March 2021

Decision date:

02 March 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1)   The application is granted.

(2)   The respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurance: to prune all seven trees in the hedge to a height that does not exceed 4.4 metres above the existing ground level in the respondent’s property, and to remove any resulting debris from the applicants’ property.

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

(4)   The works in order (2) are to be completed within 60 days of the date of these orders.

(5)   Upon receipt of no less than 24 hours’ notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day.

(6)   Every year during April, beginning in 2022, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurance, to carry out the works in order (2) in accordance with order (3).

(7)   Upon receipt of no less than 24 hours’ notice each year, the applicants are to provide any access required for the works in order (6) during reasonable hours of the day.

Catchwords:

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

Legislation Cited:

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

Cases Cited:

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Texts Cited:

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

Category:

Principal judgment

Parties:

Daljit Singh (First Applicant)
Satinder Kaur (Second Applicant)
Mario Mammarella (Respondent)

Representation:

D Singh (Litigant in person) (First Applicant)
S Kaur (Litigant in person) (Second Applicant)
M Mammarella (Litigant in person) (Respondent)
E Von Brandis-Martini (Agent) (Respondent)

File Number(s):

2020/259679

Publication restriction:

No

Judgment

Background

1. Mr Singh and Ms Kaur, the applicants, built their Glenwood property in 2002 and occupied it in 2003. As part of the construction, the applicants used fill and concrete to raise the level of the land on the northern side of the property between their house, and the side boundary shared with the respondent, Mr Mammarella. In the process, they used timber logs, and the existing metal boundary fence to retain the fill material. As a result of this level rise, this fence was effectively reduced to a height of about 1.2 metres on the applicants’ side, which allowed them to overlook the respondent’s house and rear yard without restriction. On the respondent’s side, this fence is about 1.8 metres tall.

2. In order to re-gain privacy in his yard, in 2004, Mr Mammarella planted a row of ten Leyland Cypress trees (the trees), parallel with, and adjacent to his side of the common boundary. Over the intervening years the Cypress trees have grown taller, until the applicants now say that some of the north and north-east facing windows of their dwellings receive no sunlight for much of the day, particularly in winter. They have submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”), seeking orders for Mr Mammarella to cut and maintain the hedge at a height that would restore direct sunlight to their windows.

3. The applicants constructed a rear awning/outdoor kitchen entertaining area in 2010 at the eastern end of their property, with a brick wall parallel to, and 900mm from the common boundary. Windows are present along this east-west rear wall. The applicants claim that the trees overshadow this entertaining area but the respondent contends that the trees had already grown well above the level of this building by 2010.

Framework

4. 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 windows 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

5. The hearing took place onsite. Both parties were present, and, because of his advanced age, the respondent received leave of the Court for Ms Elizabeth Von Brandis-Martini to act as his agent. I bring my own arboricultural expertise to the matter, in particular regarding the growth habit of this species.

6. Seven of the original ten trees remain in an uninterrupted row. They were planted at close and regular spacings, so as to form a hedge. Their foliage creates a dense green wall, through which one effectively cannot see. They are about seven metres tall.

7. Mr Mammarella values the trees for their privacy and for their contribution to the garden. He says he does not want the trees pruned because of the possible negative impact on their health and longevity, and the ongoing maintenance costs involved. He would prefer the trees to continue developing their natural form. They are healthy trees that are growing vigorously and, without interference, are likely to grow much taller.

8. Dwellings of both the applicants and the respondent are two-storey. There are windows along the northern side of both the ground and first floor of the applicants’ house. The respondent is concerned about overviewing of his property from the applicants’ upstairs bathroom on the north-east corner, which has relatively large windows with standard glazing. He is also concerned about privacy in his bedroom, as well as in his rear yard.

9. The applicants have been requesting pruning of the trees since 2011. They have repeatedly communicated their concerns to the respondent, and engaged with Community Justice Centres in both 2011 and 2020, in an attempt to seek mediation, but received no response from Mr Mammarella to letters sent on their behalf.

Jurisdictional requirements

10. 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?

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

12. 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).

13. Section 14A(1) is thus satisfied for this hedge.

14. 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.

15. 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 with the respondent, verbally and in writing, and by attempting to engage in guided mediation on two occasions.

16. 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.

17. 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.

Conclusions

18. The Cypress trees’ foliage forms a wall-like screen that already causes a severe obstruction to at least two of the applicants’ windows, during winter, when light and warmth from the sun is generally most valued. The most relevant windows are those in their living room, W6 and W7. In assessing severity of impact, guidance is gained from criteria used by local government in development application assessment, whereby obstruction of direct sunlight to more than 50% of a living room window in mid-winter, is considered a basis for remedial action. Under the jurisdiction of the Trees Act, only one window need be so impacted.

19. Without interference, the impact will increase as the trees continue to grow quickly and shade other windows for longer periods of the day. The hedge denies the applicants of reasonable amenity. Their request is reasonable and outweighs any reason the respondent may have for not pruning the trees. 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 letting the trees continue to grow to their full size, this close to the applicants’ windows, ignores the negative impacts this would have on his neighbours.

20. The respondent’s desire for privacy is not insignificant, however, particularly as the dividing fence provides almost no protection from oversight into his rear yard from the applicants’ yard, or from their upstairs bathroom.

21. Orders will therefore be made for pruning, as sought by the applicants, but not to the height that they request, in recognition of the respondent’s reasonable desire for privacy. The trees are still relatively young and of a resilient species, so they should respond positively to pruning, particularly if kept well-watered during dry summers.

22. Regular pruning will be ordered to maintain the trees at the lower height. This is to be done just before winter to allow maximum access to sunlight when it is needed most.

23. Debris will fall onto the applicants’ property during works, and access may be required to carry out the pruning efficiently, so orders for access will be made.

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

Orders

25. The Court orders that:

1. The application is granted.

2. The respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurance: to prune all seven trees in the hedge to a height that does not exceed 4.4 metres above the existing ground level in the respondent’s property, and to remove any resulting debris from the applicants’ property.

3. The works are to be done in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

4. The works in order (2) are to be completed within 60 days of the date of these orders.

5. Upon receipt of no less than 24 hours’ notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day.

6. Every year during April, beginning in 2022, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurance, to carry out the works in order (2) in accordance with order (3).

7. Upon receipt of no less than 24 hours’ notice each year, the applicants are to provide any access required for the works in order (6) during reasonable hours of the day.

……………………

J Douglas

Acting Commissioner of the Court

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Decision last updated: 02 March 2021