Ziaziaris v Li

[2021] NSWLEC 1373

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ziaziaris v Li [2021] NSWLEC 1373

Hearing dates:

22 June 2021

Date of orders:

22 June 2021

Decision date:

22 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the orders below.

(2) In July of 2021, the respondents are to engage a suitably experienced horticultural contractor with all appropriate insurances to prune trees T1-T4 so that they are no taller than 500 mm below the top railing of the applicants’ rear deck.

(3) In July of each subsequent year beginning 2022, the respondents are to engage a suitably experienced horticultural contractor with all appropriate insurances to prune trees T1-T4 so that they are no taller than 400 mm below the top railing of the applicants’ rear deck.

(4) The respondents are to give the applicants at least 7 days’ notice of the time and date of each pruning event in orders (2) & (3).

(5) The applicants are to allow any access necessary for the works in orders (2) & (3) to be completed during reasonable hours of the day, including access to their rear deck.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – one of the trees is not planted to form a hedge – view obstruction – whether the view obstruction is severe – sunlight obstruction – whether sunlight obstruction is severe – balancing of issues – privacy – orders for pruning

Legislation Cited:

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

Texts Cited:

Sydney Development Control Plan 2012

Category:

Principal judgment

Parties:

John Ziaziaris (First Applicant)
Pamela Ziaziaris (Second Applicant)
Sol Qing Su Li (First Respondent)
Xing Ping Zhang (Second Respondent)

Representation:

J Ziaziaris (Litigant in Person) (First Applicant)
P Ziaziaris (Litigant in Person) (Second Applicant)
H Li (Agent) (Respondents)

File Number(s):

2021/50772

Publication restriction:

No

Judgment

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

Background to the application

1. From the deck at the back of their Kyle Bay dwelling, John and Pamela Ziaziaris (‘the applicants’) have enjoyed views to the west, including the water of the Georges River. They have applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for neighbouring trees belonging to Sol Li and Xing Ping Zhang (‘the respondents’) to be pruned and maintained on the basis that these trees are severely obstructing a view from their dwelling and severely obstructing sunlight to a window of their dwelling.

2. The Ziaziarises want orders for five trees to be pruned and maintained below fence height, and an order to prevent or restrict further plantings in the respondents’ rear garden.

3. Mr Li and Ms Zhang dispute that all five trees form a hedge, and that the trees severely obstruct the applicants’ views and sunlight.

Framework for this decision

4. Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

• The trees (there must be at least two) must be planted so as to form a hedge that rises to a height of at least 2.5 metres (s 14A(1) of the Trees Act);

• The applicants must make reasonable effort to reach agreement with the tree owners (s 14E(1));

• The trees must be severely obstructing either sunlight to a window of the applicants’ dwelling, or a view from the dwelling (s 14E(2)(a)); and

• The obstruction is such that the applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, critical issues at s 14F in this matter include privacy and amenity.

5. If orders are made, they might be those sought by the applicants, or they might be such orders at s 14D of the Trees Act as the Court otherwise sees fit to remedy, restrain or prevent a severe obstruction of sunlight or of a view.

The hearing

6. The hearing took place onsite, allowing for observations of the trees, both gardens, views and sunlight, and issues of privacy and amenity.

The applicants made reasonable effort

7. During recent years, the applicants discussed the trees many times with the respondents, sometimes partially successfully, but ultimately without being able to resolve the situation. They applied for mediation through the Community Justice Centre, but the respondents did not agree to mediation, so they then applied to the Court. I am satisfied that the applicants made reasonable effort.

Trees 1–4 form a hedge

8. The application includes five trees. Four of these were planted in a straight line along the respondents’ rear boundary, their foliage forming a screen along the boundary. From south to north, the trees are: T1 a lilly pilly, T2 a camellia, T3 camellia, and T4 another lilly pilly. The camellias are approximately 4 metres tall; the lilly pillies are 6–7 metres tall. They appear as a hedge, even though the respondents argued that T1 is a few metres from T2 so is not part of the hedge. I am satisfied that these four trees are planted so as to form a hedge.

9. Tree 5, an avocado, is not part of this row of trees. It is several metres from the boundary, separated from trees 1–4, and appears as a single tree in the landscape. The applicants also stated that it is a separate tree, and they do not claim it is part of the hedge. As the avocado is not planted so as to form a hedge, the Court cannot make orders under Pt 2A of the Trees Act, whether or not the tree obstructs sunlight or views.

Obstruction of sunlight

10. The applicants claim the trees severely obstruct sunlight to the lower level of their dwelling, including to a west-facing window, to the windows facing north to their patio, and to the patio itself. The Court’s jurisdiction at s 14E(2)(a)(i) does not extend to the patio, but only applies to windows of the applicants’ dwelling. I have reviewed photographs of sunlight obstruction provided by the applicants. The window facing north is underneath the upper level deck. It can only receive sunlight during the late afternoon, during which time the trees might partly shade the window, but not to the extent that would be regarded as severe. The west-facing window becomes completely shaded by the trees during the afternoon, such that this might be regarded as severe. However, it is a lower level room, not the principal living area, and this is not the room’s principal window. The extent of pruning required to restore sunlight access would be detrimental to these trees, such that, when balancing the benefits to the applicants against the impacts to the trees, I would not order pruning of the trees for sunlight access.

11. The applicants also complained about mould, and about T1 hitting their dwelling wall, but an application under Pt 2 of the Trees Act would be required for the Court to make orders on that basis.

Obstruction of views

12. Photos show the applicants had extensive water views when they came here. The respondents argued that those views were obstructed by other features, including council-owned trees and the respondents’ roof. I observed that the respondents’ roof is much lower than the applicants’ deck, allowing generous water views above. Council trees are more distant and are part of the landscape view. I accept the applicants’ submissions that the view is valuable to them, is enjoyed by them, and increases their property value. Trees 1–4 have grown up into this view, such that a tall person might still enjoy some water views while standing on their deck, but the water is completely obscured when sitting at the table on the deck. This table is likely to be the most popular entertaining area in the dwelling, especially during warmer months. I find that the trees are now severely obstructing the applicants’ view.

Consideration of relevant matters

13. Having found that trees 1–4 severely obstruct a view, I can make orders to remedy, restrain or prevent the obstruction. I have considered all relevant matters at s 14F of the Trees Act in coming to appropriate orders.

14. The applicants stressed that their property has heritage protection, but there was no evidence that this relates to their view or sunlight access, or to the height of neighbouring trees, so this is not relevant to my decision.

15. The water view is the most valuable part of the view from the applicants’ deck, now obstructed by the trees.

16. The respondents argued that the applicants knew the trees were growing there when they purchased their property, even if the trees were less than a metre tall, as the applicants say they were. I do not accept the implication that the applicants should therefore suffer the resulting loss of the view. For several years the applicants had an agreement, apparently, with previous owners of the trees for their periodic pruning.

17. I see no need to order pruning to below fence height (1.8 metres). Firstly, this would be detrimental to the trees, which are now up to 6–7 metres tall. Such pruning would leave only short, bare, woody stems. Secondly, such severe pruning is not required for restoring the applicants’ views. In fact, maintaining the trees a little below their current maximum height would suffice.

18. The respondents emphasised the importance of their privacy. The applicants dwelling is higher and overlooks the respondents’ garden and dwelling. The trees provide some screening for the respondents. The applicants argued that the dwellings are some considerable distance apart, but having stood at the back of the respondents’ dwelling, I understand and appreciate their concerns. The applicants argued that the respondents were aware of potential overlooking issues when they purchased their property. This may be so, but it does not prevent them taking reasonable steps to establish some privacy, should they desire.

19. I observed that maintaining the trees at a height approximately 400 mm below the upper railing of the applicants’ deck would maintain the respondents’ privacy while restoring most of the applicants’ view, so this pruning will be ordered. The first pruning will be a little lower to allow regrowth to be maintained, avoiding constant cutting into woody material.

20. The applicants expressed willingness for a contractor (rather than the respondents themselves) to prune the trees from their deck, which would be much easier than pruning from the lower ground level of the respondents’ property.

Orders

21. As a result of the foregoing, the Court orders that:

1. The application is granted to the extent of the orders below.

2. In July of 2021, the respondents are to engage a suitably experienced horticultural contractor with all appropriate insurances to prune trees T1-T4 so that they are no taller than 500 mm below the top railing of the applicants’ rear deck.

3. In July of each subsequent year beginning 2022, the respondents are to engage a suitably experienced horticultural contractor with all appropriate insurances to prune trees T1-T4 so that they are no taller than 400 mm below the top railing of the applicants’ rear deck.

4. The respondents are to give the applicants at least 7 days’ notice of the time and date of each pruning event in orders (2) & (3).

5. The applicants are to allow any access necessary for the works in orders (2) & (3) to be completed during reasonable hours of the day, including access to their rear deck.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 24 June 2021