Wesiak v DA

[2023] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wesiak v DA [2023] NSWLEC 1063

Hearing dates:

30 January 2023

Date of orders:

15 February 2023

Decision date:

15 February 2023

Jurisdiction:

Class 2

Before:

Washington AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – trees not severely obstructing sunlight

Legislation Cited:

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

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Bernd Wolfgang Wesiak (Applicant)
DA (First Respondent)
AM (Second Respondent)

Representation:

Bernd Wolfgang Wesiak (Self-represented) (Applicant)
DA and AM (Self-represented) (Respondents)

File Number(s):

2022/330525

JUDGMENT

1. COMMISSIONER: The applicant, Mr Bernd Wesiak, has applied to the Court pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders relating to a row of five Magnolia grandiflora ‘Teddy Bear’ trees that grow on his neighbour, DA’s property along their shared side boundary. Mr Wesiak contends that due to their height and density, the trees, which collectively form a hedge, are severely obstructing sunlight to his rear courtyard, clothesline, and windows to both his garage and dining room.

2. Both the applicant and respondents were self-represented, and the hearing was held partly on Mr Wesiak’s property in Lilyfield and partly on the neighbouring property belonging to DA. Both respondents were represented by DA in proceedings.

3. The two adjacent properties are situated at different levels, with Mr Wesiak’s property sitting approximately 900mm higher than its neighbour. The trees in question are positioned at the lower level, and currently range in height from 5m (T2 and T4) to 6.7m (T1). A timber-topped colorbond fence divides the two properties which, due to the step in landform, is 1.8m high on Mr Wesiak’s side and 2.7m high on the neighbouring property. As a result, the trees in question project between 2.3-4m above Mr Wesiak’s fenceline. All five trees have been assessed as being in good health and vigour.

The Court’s power to make orders

4. Mr Wesiak contends that, due to their excessive height, the trees are severely obstructing sunlight to his rear courtyard, clothesline, and windows to both his garage and dwelling. No loss of view is contended.

5. Under Part 2A s 14B of the Act:

An owner of land may apply to the Court for an order to remedy, restrain or prevent a 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.

6. Pursuant to s 14B, Mr Wesiak has applied to the Court to request that trees T2 and T4 be removed, and the remaining three trees be pruned to 2.7m in height measured from the ground and allowed to grow to a maximum height of 3m.

7. Part 2A s 14D(1) of the Act reads:

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of

(a) sunlight to a window of a dwelling situated on the applicant’s land, or

(b)  any view from a dwelling situated on the applicant’s land,

if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

8. During proceedings, Mr Wesiak acknowledged that obstruction of sunlight to the garage is not covered under the Act and declined to press this further, focusing instead on the impact on his courtyard, clothesline, and dining room. I note however that the Act makes no provision for an application to remedy the severe obstruction of sunlight to any outdoor space or amenity including courtyard, garden or clothesline, and I have no power to make orders in respect of these aspects of Mr Wesiak’s application. It is therefore the dining room window to the rear of Mr Wesiak’s dwelling that becomes the principal subject of these proceedings.

9. With respect to this contention, the respondent, DA submits primarily that the Court lacks jurisdiction to make orders. Should the Court find otherwise, he requests the Court make an alternative order for him to undertake annual selective pruning of the trees to limit their height to 5m, at the expense of Mr Wesiak. I note again that the Court does not have power to make such orders for costs under the Act, however, for the reasons I will discuss below, I concur that the Court lacks the jurisdiction to make the orders requested by Mr Wesiak.

Has there been a reasonable effort made to reach agreement?

10. Part 2A of the Act provides several matters by which the Court must be satisfied before making an order, and several matters to be considered by Court.

11. The first of these matters is at s 14E of the Act whereby the Court must be satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Mr Wesiak submits that this is indeed the case and that he has made several attempts in person and in writing to reach agreement with DA, and that he resorted to Court proceedings due to the belief that no further discussions would successfully resolve the situation.

12. DA submits that no reasonable attempt has been made, and that in their previous discussions he had expressed a willingness to find a mutually agreeable solution that maintained the health of the trees and the privacy and amenity of his property. He states that, in his opinion Mr Wesiak made unreasonable demands, declined to mediate, and ‘moved the goal posts’ in relation to the problem he is seeking to address and the possible solutions.

13. In Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152, Preston CJ provides guidance in ascertaining whether the applicant has made ‘a reasonable effort to reach agreement’. From this I note that to meet this test, Mr Wesiak need not negotiate exhaustively to a consensus which involves concessions he may deem not to be in his best interests. From his submissions, it is apparent that irrespective of DA’s submission, Mr Wesiak felt the alternatives proposed by DA in their pre-court negotiations were not in his best interests and subsequently brought these proceedings to Court. From this, it is my objective assessment that Mr Wesiak made a ‘reasonable effort’ and that this test has been met.

14. I am further satisfied that the applicant has given at least 21 days notice to the respondents of his application for orders, and that the requirements of s 14E(1)(b) have also been met.

Do the trees severely obstruct sunlight to a window of the dwelling?

15. To make the orders Mr Wesiak requests, s 14E(2) of the Act requires the Court to be satisfied that:

(a)  the trees concerned:

(i)  are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land,

…and…

(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.

16. The first test is therefore whether the trees obstruct sunlight to a dwelling on Mr Wesiak’s land, and if so, whether that obstruction is severe.

17. In support of his application, Mr Wesiak provided the Court with a series of shadow diagrams to illustrate the severity of overshadowing of his window. DA submits and I concur that these shadow diagrams lack credibility for a number of reasons. These include inaccuracies such as the dwelling on DA’s property being depicted as single storey instead of two storeys, and all five trees being depicted at the same height- the dimension of which is unclear. In addition, the shadow impact of a large Eucalyptus to the east of the site has not been incorporated. I am, therefore, unable to rely on these diagrams as evidence.

18. Subsequently, we turn to the verbal evidence of Mr Wesiak given on site in which he stated that the overshadowing occurs in winter only, and that as a result of the Magnolia hedge there is no sunlight on the window before 11am. He further stated that the sunlight to this window is gone by approximately 3pm. This was neither correlated nor disputed by DA and, as the hearing was held on an overcast day in summer, there was no way for us to correlate this evidence on site. I, therefore, must accept this as accurate estimate of the sunlight received to the dining room window.

19. From my observations on site, I accept that due to its height, dense foliage and position in relation to the window, the Magnolia hedge on DA’s property obstructs sunlight to a window of Mr Wesiak’s dwelling. However, I also accept that on Mr Wesiak’s submission, while there is no sunlight to the window between 9-11am, there is sunlight between 11am-3pm. Therefore, the hedge causes no obstruction to sunlight for approximately four of the six hours from 9am to 3pm in winter.

20. Pursuant to s 14E(2) of the Act, I must not make an order relating to the obstruction of sunlight to Mr Wesiak’s dwelling unless I deem the obstruction to be severe. Whilst the trees do contribute to the obstruction of sunlight to Mr Wesiak’s dining room window, given the limited duration of this occurrence (approximately two hours per day in the winter months only), it is my considered opinion that this obstruction is not severe and subsequently that I have no power to make the orders Mr Wesiak requests.

21. Notwithstanding the above, s 14E(2)(b) of the Act also requires me to conclude that:

(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.

22. To determine this, I turn to the considerations listed in s 14F of the Act and note the following:

1. The trees contribute to the local ecosystem and biodiversity (14F(g)) as demonstrated by the presence of a possum drey in the upper boughs of T5, and a substantial number of bees in the few flowers present.

2. The impact of the severe pruning requested by Mr Wesiak would likely have an adverse impact on the trees (s 14F(k)), including removal in some cases of almost the entire crown. Ms Howden, DA’s arboricultural expert, submits and I accept that, while selective pruning to a lesser extent may be achievable, pruning the trees by, in some instances, over half of their height will have both an unacceptably adverse aesthetic impact, and may result in failure of the trees entirely.

3. DA submits and, from the observations I was directed to make on site, I accept that the trees make a valuable contribution to the privacy of both parties’ courtyards when viewed from upper level windows, and that the trees make a valuable contribution to the landscaping and amenity of the land on which they are situated (s 14F(l)).

4. Given the lack of accurate shadow diagrams and the presence of a large Eucalypt to the northeast of Mr Wesiak’s land, there is no way to confirm whether the Magnolias alone cast the shadow. DA submits and I accept that, although the canopy of this Eucalyptus is light, it is possible that it contributes to the obstruction of sunlight to Mr Wesiak’s window ((s 14F(m)).

23. For these reasons, I am unable to make the orders requested by Mr Wesiak and must refuse the application.

Orders

24. The Court orders that:

1. The application is refused.

……………………….

E Washington

Acting Commissioner of the Court

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Decision last updated: 15 February 2023