The Owners Strata Plan No. 3123 v Moore

[2023] NSWLEC 1550

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No. 3123 v Moore [2023] NSWLEC 1550

Hearing dates:

24 August 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The Pt 2 application is granted.

(2)   Within 60 days of the date of these orders, the first and second respondents are to restore the vertical alignment of, and make secure, the section of the applicant’s boundary fence immediately to the south of the southeast corner post of the first and second respondents’ property.

(3)   The applicant is to provide any access required for the first and second respondents to complete the works in order (2) during reasonable hours, on 48 hours’ notice from the first and second respondents.

(4) The Pt 2A application is granted to the extent of the following orders.

(5)   Within 60 days of the date of these orders, the first and second respondents are to prune, or engage a contractor to prune, all trees in tree groups G2 and G3 so that they are no taller than 2.5 metres.

(6)   The applicant is to provide any access required for the first and second respondents to complete the works in order (5) during reasonable hours, on 48 hours’ notice from the first and second respondents.

(7)   The exhibits are returned, other than Exhibits A, B and C.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fence damage caused by neighbouring tree – Pt 2A application – whether the trees are planted so as to form a hedge – obstruction of sunlight and views – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 10, 12, 14A, 14B, 14E, 14F

Uniform Civil Procedure Rules 2005, rule 36.17

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Wisdom v Payn [2011] NSWLEC 1012

Category:

Principal judgment

Parties:

The Owners – Strata Plan 3123 (Applicant)
Philip Moore (First Respondent)
Caroline Quaine (Second Respondent)
The Owners – Strata Plan 91797 (Third Respondent)

Representation:

Counsel
M Langenheim (Applicant)
P Moore (Self-represented) (First Respondent)
C Quaine (Self-represented) (Second Respondent)
P Moore, C Quaine, A Harding, L Bell (Self-represented) (Third Respondent)

Solicitors
Monti Lawyers (Applicant)

File Number(s):

2023/213166

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: The owners of Strata Plan No. 3123 (the applicant), a property of units in North Bondi, have applied to the Court seeking orders relating to neighbouring trees on the property of Philip Moore and Caroline Quaine (the first and second respondents).

2. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicant seeks orders for repairs to their boundary fence, which they say was damaged by a tree on the respondents’ property. Pursuant to s 14B (Pt 2A) of the Trees Act, the applicant seeks orders for several trees to be removed or pruned due to the trees’ obstruction of sunlight and views.

3. The hearing took place onsite on 24 August, allowing the Court to inspect the trees and both properties. The Court went to three units on the applicant’s property to inspect the trees’ impacts on views and sunlight. Privacy and overlooking issues were observed at both properties. The first and second respondents were assisted in their submissions by Andrew Harding and Louise Bell, the four of them being the owners of Strata Plan 91797 (the third respondent). At the hearing’s outset, after some confusion over the ownership of land on which the trees are located, it was established that the trees are on land belonging to the first and second respondents.

The trees

4. Trees in the application are:

• A Senegal Date Palm (Phoenix reclinata) (T1)

• A group of several Native Guava (Eupomatia laurina) (G2)

• A group of several Mackaya bella (G3)

• A Cheese Tree (Glochidion ferdinandi) (T4)

• A Bangalay (Eucalyptus botryoides) (T5).

5. The trees grow close to the respondents’ rear boundary. They are generally healthy, providing significant canopy cover to the rear part of their property. Some of the trees were incorrectly identified in the application, but the numbering used in the application is applied here in this judgment.

History

6. When they the respondents moved into their property in or soon after 2000, their respondents’ rear garden had several mature eucalypts and other trees forming a tall canopy over most of their garden. In or around 2008, many of these trees declined or died due to honey fungus (Armillaria sp.), a root decay fungus. The respondents gained advice on Armillaria-resistant species and, after removing the dead or dying trees, replanted the garden. Other than T1, which was already established when they came here, all trees in these proceedings are part of the respondents’ planting.

7. The applicant’s building was constructed in the 1960s. Owners or occupiers of units facing west towards the respondents’ property gained increased access to views and sunlight when the respondents’ dominant tree canopy was removed after 2008. Since then, the respondents’ trees have grown to obstruct, to varying degrees, sunlight to, and views from, some units in the applicant’s building. Owners and occupiers of several units have complained of a lack of light and loss of views, as well as increased mould and vermin they say are related to the proximity of the trees. The applicant also alleges that their boundary fence has been pushed out of alignment by T1.

8. The respondents acknowledge that their trees have some impact on their neighbours, but dispute the severity of the impacts and the actions required to reasonably address these issues.

Reasonable effort

9. Under both Pt 2 (at s 10(1)) and Pt 2A (at s 14E(1)) of the Trees Act, the Court must be satisfied, before making any orders, that the applicant has made a reasonable effort to reach agreement with the trees’ owners. Charles Monti’s affidavit (Ex H) shows that the applicant wrote to the respondent on several occasions. The respondents replied to most communications received, but the applicant says no action was taken to address their concerns, so they filed their application with the Court. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents, and that they gave the required notice of their application.

Pt 2 application

10. The respondents concede that their Senegal date palm (T1) grew against and damaged the fence along the applicant’s western boundary, particularly a section of fence on the eastern boundary of the respondent’s southern neighbour. The respondents have made some effort to realign the timber paling fence. Mr Langenheim, Counsel for the applicant, pointed out that the fence remains out of alignment and not properly secure, so the applicant still seeks orders for some further work to the fence. The respondents understand what needs to be done and have the ability to do this themselves. Orders will be made for this. I have considered the matters at s 12 of the Trees Act and find the order sought for fence repair is reasonable.

Pt 2A application

11. The Trees Act restricts the Court’s jurisdiction under Pt 2A, particularly at s 14A:

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).

(2)  Despite section 4, this Part does not apply to trees situated on Crown land.

12. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, at [28], Chief Judge Preston discussed the meaning of this section. In particular, he wrote:

“28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.”

13. That is, Pt 2A of the Trees Act only applies to trees that form a hedge in the present and were planted with an intention to form a hedge. The respondents described their garden as it was in the early 2000s when they came here. Mature eucalypts filled the back garden. They submitted that T1 was already established in the southeast corner of their property at that time. It was not part of any hedge. Neither the evidence, nor my own observations at the onsite hearing, suggest to me that T1 was planted with the intention of forming a hedge. For this reason, I find that Pt 2A of the Trees Act does not apply to T1.

14. The applicant’s concerns regarding T1, raised in their application and at the hearing, are not without substance. I observed the tree’s impact to sunlight and views, particularly at units 16 and 17 on the second level. The tree’s foliage obstructs sunlight to, and views from, Unit 16’s living room window and unit 17’s bedroom window. Of the tree’s multiple stems, fronds of the three easternmost stems extend across the boundary almost to the balconies of these units. Their proximity increases the obstruction to a level that might be considered severe. Had I found the tree was part of a hedge, I would be inclined to make orders. The respondents submitted that they are willing to, and intend to, remove 2 or 3 stems on this side of the tree. The Court notes this undertaking here. Nevertheless, for reasons given above, no orders can be made for T1 under Pt 2A of the Trees Act.

15. Trees T4 and T5 are not part of a hedge; they are tall trees with scattered foliage that does not form a dense screen. The respondents’ description of their garden’s history does not suggest these trees were planted to form a hedge. While the Tree Act does not include a definition of what might comprise a hedge, the criteria for a hedge planting have been considered in many Pt 2A matters before the Court: for instance, see Wisdom v Payn [2011] NSWLEC 1012 at [45]. Trees T4 and T5 have not been pruned as a hedge, and do not appear hedge-like. Therefore, despite any impact these trees might have on the applicant’s sunlight and views, no orders can be made under Pt 2A for these two trees.

16. Trees in groups G3 and G4 form two hedges. Both groups have multiple trees planted along the boundary, planted with the intention of forming a screen for some privacy. The respondents concede that the trees have grown taller than they intended and should be pruned. Foliage of these trees forms a relatively dense screen along the boundary. Photos show some sunlight still reaches the applicant’s building, although these were taken during a season when northern sunlight passes between the trees and the building. In summer, the trees’ impact would be more significant. The taller trees above (T4 and T5) also obstruct sunlight, or filter it, but the denser screen of trees in G2 and G3 makes the obstruction severe, especially at unit 14 on the first floor. The affected room is a bedroom, that might receive less use than a living room, but the impact is enough to warrant orders. The applicant wants these trees pruned to a height of 1.8 metres, but the respondents’ proposal to prune them to 2.5 metres would allow sufficient sunlight to these units.

17. The Court can make orders for ongoing maintenance to restrict the height of a hedge. In this matter, the respondents asserted that they intend to maintain these trees at the reduced height, so I see no need for further orders beyond the initial pruning.

18. I have considered the matters at s 14F of the Trees Act, including the trees’ contribution to the environment and to neighbourhood amenity. The respondents value their garden and the contribution made by these trees. The orders being made here balance the trees’ benefits with the enjoyment of unit owners and occupiers in the applicant’s building.

Correction to orders

19. At the onsite hearing, orders were made against ‘the respondents’, which would include all three respondents. As the trees are only on the land of the first and second respondents, the orders have been varied, as permitted by the ‘slip rule’ at rule 36.17 of the Uniform Civil Procedure Rules 2005.

Orders

20. As a result of the foregoing, the Court orders:

1. The Pt 2 application is granted.

2. Within 60 days of the date of these orders, the first and second respondents are to restore the vertical alignment of, and make secure, the section of the applicant’s boundary fence immediately to the south of the southeast corner post of the first and second respondents’ property.

3. The applicant is to provide any access required for the first and second respondents to complete the works in order (2) during reasonable hours, on 48 hours’ notice from the first and second respondents.

4. The Pt 2A application is granted to the extent of the following orders.

5. Within 60 days of the date of these orders, the first and second respondents are to prune, or engage a contractor to prune, all trees in tree groups G2 and G3 so that they are no taller than 2.5 metres.

6. The applicant is to provide any access required for the first and second respondents to complete the works in order (5) during reasonable hours, on 48 hours’ notice from the first and second respondents.

7. The exhibits are returned, other than Exhibits A, B and C.

D Galwey

Acting Commissioner of the Court