Skender v Ketringham

[2022] NSWLEC 1579

Land and Environment Court

New South Wales

Medium Neutral Citation:

Skender v Ketringham [2022] NSWLEC 1579

Hearing dates:

28 July 2022

Date of orders:

28 July 2022

Decision date:

28 July 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 – house orientation causing sunlight obstruction – no jurisdiction covering solar access to gardens

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Clancy v Bell & anor [2011] NSWLEC 1017

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

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

Category:

Principal judgment

Parties:

Ruth Skender (Applicant)
Colin Ketringham (First Respondent)
Leanne Ketringham (Second Respondent)

Representation:

T Skender (Agent) (Applicant)
C Ketringham (Self represented) (Respondents)

File Number(s):

2022/85780

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. Mrs Skender (the Applicant), has lived at her property at Kanahooka in the Wollongong Local Government Area (LGA) since 1976. The Applicant and Mr and Mrs Ketringham, (the Respondents), share a boundary which runs from roughly south at the front of the Applicant’s land to roughly north at the rear. The Applicant’s west side boundary is the Respondents’ rear boundary.

2. The Applicant claims that the mess falling from the Respondents’ trees started becoming a problem about 7 years ago, and that in particular, four Acmena smithii (Lilly Pilly) (the trees), planted along the southern end of the common boundary, severely block sunlight to three nominated windows (W1 – W3) of her dwelling, and to her front garden.

3. The Applicant says she tried to resolve the dispute by seeking mediation with the Respondents, but they refused the invitation. Further requests for pruning were made by the Applicant, without satisfaction. As a consequence, Mrs Skender 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:

1. Remove trees before they damage fence line would be great.

2. Trim trees to 3 metres to allow sunlight in and enable trimming from our side safely.

4. The Respondents planted the trees about 10 years ago for the privacy they provide, to block out light, and for their contribution to garden design. Though Mr Ketringham acknowledged that the trees needed pruning, he does not want the pruning to negatively impact on the benefits provided by the trees’, nor on their health and longevity. The Respondents appreciate the contribution of the trees’ foliage to their sense of privacy.

Onsite hearing

5. The hearing took place onsite, with both parties in attendance. Mr Ketringham represented both himself, and Mrs Ketringham, while Mr Tony Skender represented his mother, as her agent. The ‘Agent’ section on page 5 of the Tree Dispute Application was appropriately completed and Mrs Skender signed a request for her son to act as her agent. Mrs Skender also attended the hearing.

6. The four trees (T1-T4), which are about 6-7 metres (m) tall, are growing in a row, at close and regular spacings, along the Respondents’ fence line in the south-east corner of their garden. T1, at the southern end is dead or near dead. Two of the remaining three trees had been damaged by beetle larvae (borer) activity, and this is likely to reduce their foliage density in future years.

7. The Applicant also claimed that a Sapium sebiferum (Chinese Tallow Tree) further north along the boundary should be considered part of the hedge, and it was labelled T5 in the application diagram. A “Banana Plantation” was also noted at the northern end of the Respondents’ land, but this is not claimed to be part of the hedge. Rather, it relates to the Applicant’s submission regarding the ‘mess’ and unreasonable maintenance burden imposed by the trees, generally.

8. The Applicant was also concerned about fence damage due to the proximity of the trees to the boundary, but there was no obvious damage apparent. In any case, there is no jurisdiction to assess damage under Pt 2A of the Trees Act. This would require a separate application under s 7 of Pt 2 of the Trees Act.

9. The dwellings of both parties are single storey, though the Applicant’s land slopes upwards from the south and there is a garage below the front of the residence on the southern side. W1 and W2 are bedroom windows, while W3 is a lounge room window at the eastern end of the front of the house which is shaded by the roof extending southward to produce an alcove. All these windows face south. There are no windows on the west side of the Applicant’s dwelling which face the Respondents’ land.

10. The Applicant submits that each of W1 - W3 lose 2-3 hours of sunlight in winter, when it is needed to provide warmth to bedrooms, while in summer, W1 loses 5 hours of sunlight, W2 loses 3 hours and W1 loses 1 hour of sunlight, as a consequence of the trees. At question 26 of the application, regarding pruning, the Applicant submits that the trees could be trimmed to a maximum height of 3m above ground level to provide them “with sunlight to yard and windows”. She also claims that the trees are a fire risk.

11. Mr Skender claimed to have requested pruning of the trees by Mr Ketringham on various occasions and said that Wollongong Council had granted permission for pruning of overhanging branches in 2020. Mr Ketringham says that when approached by Mr Skender prior to Christmas 2021, he had agreed to prune the trees but that a combination of illness, injury and inclement weather since then had prevented him from doing so. To the contrary, Mr Skender said that the ‘issues’ and his pruning requests predate 6 months, and that Mr Ketringham was dismissive of his requests.

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].

13. 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 Applicants’ dwelling (or a view from a dwelling). If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Do the trees form a hedge?

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. From the evidence gleaned onsite, and from Mr Ketringham’s submission that the trees were planted for privacy and to screen out distant lights, I am satisfied that T1-T4 were planted so as to form a hedge, and that s 14A(1) of the Trees Act is thus engaged.

17. I am, however, not satisfied that the Chinese Tallow Tree (nominated as T5), forms part of the hedge, nor a Kentia palm (the palm) which is located between the hedge and T5. Both the palm and T5 are relatively distant from the hedge and are located in a separate raised garden bed. They were not planted along with the trees in the hedge, and they are quite dissimilar in morphology and characteristics to the four hedge trees.

18. 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.

19. Section 14E(1)(a) of the Trees Act requires the Applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The application describes repeated contact efforts by the Applicant, and unsuccessful attempts made with assistance of Legal Aid to arrange mediation with the Respondents. Mr Ketringham did not contradict the Applicant’s submission, and this evidence is sufficient to engage s14E(1)(a) of the Trees Act. I am also satisfied that the Applicants have given notice of the application in accordance with s 14C, such that s 14E(1)(b) of the Trees Act has been engaged.

20. 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.

21. 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.

22. As the front of the dwelling that contains W1 - W3, faces slightly east of south, it is this southern orientation which is the primary contribution to obstruction of sunlight to the windows, rather than the hedge. During winter, when the diurnal arc of the sun passes across the northern sky, only towards sunset would sunlight reach any of W1 – W3. This sun path and sunset location are clearly displayed on the Applicant’s diagram for question 2 of the Tree Dispute Claim details.

23. In assessing the severity of sunlight obstruction to a window, the Court may take guidance from criteria used by local government planners in their consideration of overshadowing, when assessing development applications. This applies a threshold where less than three hours of sunlight availability to 50% of living room windows between 9am - 3pm on 22 June (the winter solstice) is considered unacceptable. This is generally viewed as a severe obstruction of sunlight by the Court.

24. In this case, as the nominated windows face just east of south, the dwelling and its eaves block almost all direct light to W1 – W3. Even if the hedge was absent, between late autumn and early spring, direct sunlight could only reach these windows late in the afternoon, after 3pm. In summer, when the sun’s arc passes closer to overhead, W1 and W2 would gain longer direct sunlight exposure time in the absence of the hedge, but it would still likely be after 3pm.

25. Therefore, any obstruction of sunlight to these nominated windows as a consequence of the hedge can only be considered minor. S 14E(2)(a) is thus not satisfied, and I have no powers to make orders under the Trees Act. This conclusion is reinforced by the fact that the rooms containing both W1 and W2 are bedrooms, which, being considered primarily for sleeping, are assigned lower importance than living rooms in terms of sunlight. Further, the Trees Act has no jurisdiction regarding reduced solar access to gardens. As Fakes C notes at [17] of Clancy v Bell & anor [2011] NSWLEC 1017, “There is no provision in the Trees Act to consider the loss of sunlight to anything other than a window of a dwelling”.

26. If I had determined the obstruction of sunlight to the Applicants' dwelling as a consequence of any or all of the trees in the hedge to constitute a severe obstruction, 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.

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(s) considers such other matters as the Court considers relevant in the circumstances of the case. The issue of the trees encroaching over the common boundary and leaves and other tree debris accumulating on roofs and gutters and the ground was repeatedly stressed by the Applicant. This issue is not explicitly considered under Pt 2A of the Trees Act, rather, it is addressed under Pt 2 of the Trees Act with respect to damage. As it was an important element for the Applicant to substantiate pruning the hedge, it is appropriate to note the Court’s position in this respect.

29. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [56] (Robson), discussing the issue of nuisance, Preston CJ states that “mere encroachment is insufficient to complete a cause of action.”

30. In Robson at [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, his Honour 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.”

31. 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.”

32. 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, none of the Applicants’ submissions in this respect invoke the jurisdiction of the Trees Act.

Conclusion

33. The obstruction of sunlight to windows as a consequence of the hedge was not severe because the house frontage and windows W1 - W3 faced slightly east of south, and they could only receive access to direct sunlight late in the afternoon. The hedge has restricted access to afternoon sunlight, but overall, this obstruction is minor. The jurisdiction of the Trees Act does not extend to consideration of solar access to gardens.

Orders

34. The orders of the Court are:

1. The application is refused.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 20 October 2022