Baker v Swan

Land and Environment Court (NSW)|2023-02-20

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

Background

COMMISSIONER: Mr Raymond Baker, the applicant, shares a side boundary with the respondent, Ms Wendy Swan, between their properties in Rutherford. The common boundary (boundary) extends from south-west at the front of the applicant's land to north-east at the rear. The respondent's driveway faces the south-west, but her property is a corner block, and the front of the respondent's dwelling faces north-west.
Mr and Mrs Baker occupied their property in 2016, while Ms Swan and her husband occupied her property in 2017, at which time the trees had been growing for many years and were already mature. The respondent's trees comprise two Fraxinus sp. (Ash), one Callistemon viminalis (Weeping Bottlebrush), and a row of Syzygium sp. (Lilly Pilly).
Ms Swan provided an affidavit (Exhibit 1), dated 27 January 2023, in which she noted that Mr Baker had complained to her husband about the height of the Lilly Pilly's and the Weeping Bottlebrush on a few past occasions, and that she therefore had the height of the Lilly Pilly trees reduced about two years ago. Nonetheless, this pruning failed to satisfy Mr Baker as he preferred that the trees be pruned to the level of the boundary fence, or lower.

Framework

The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees form a hedge which is causing a severe obstruction of sunlight to at least one window of the applicant's dwelling, or of views from the applicant's dwelling. If so satisfied, the Court must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

The onsite hearing commenced with an inspection of the respondent's trees, and the impact of the trees on the applicant's property. Both parties attended the hearing and were represented by Solicitors; Mr Slattery, who was appointed by the applicant at short notice, and Ms Skinner, on behalf of the respondent.
A row of eight closely planted Lilly Pilly's were growing along the respondent's side of the common boundary, adjacent to the applicant's garage and extending for a few metres north-east of the garage. The Weeping Bottlebrush was located near the common boundary a few metres south-west of the Lilly Pilly's, and clear of the applicant's garage. The Ash trees were located adjacent to the respondent's street frontage which is perpendicular to the boundary. They are distinctly separate from the other trees and spaced well apart from each other.
Though Mr Baker, at question 1 of his 'Tree Dispute Claim Details' (Exhibit B), indicated that this application was made to "remedy, restrain or prevent a severe obstruction of any view from a dwelling", the evidence submitted by the applicant related to obstruction of sunlight, foliage encroachment across the boundary and alleged resultant damage and mess from leaves. As none of the trees caused any relevant obstruction of views, the issue of views is set aside, and obstruction of sunlight as a result of the trees was addressed initially.
In Exhibit 1, Ms Swan claimed that the applicant's site diagram, provided at question 2 of Exhibit B, was not a true representation of the quantity, and location, of the trees, nor of the applicant's dwelling, because the site diagram failed to show that the applicant's garage bordered the boundary, rather than his house.
The respondent provided an alternative diagram at Annexure A of Exhibit 1, which I confirmed during the inspection as more accurate than the applicant's site diagram. Notwithstanding this, the applicant's garage was connected to his dwelling, and it extended almost to the boundary. The applicant's omission of the garage in his site diagram was likely to have been a simple mistake, but the respondent's clarification with regards to the location of the garage was relevant.
The applicant claimed that the Lilly Pilly's were obstructing sunlight from his living area at the north-eastern end (back) of his dwelling, and from the adjacent veranda, further towards the north-east. Therefore, Mr Baker wanted these trees pruned and maintained at eye-height, or at least below the height of the gutters of the garage. Mr Baker submitted that the Lilly Pilly's would again grow too tall, and if not maintained, would require re-pruning within three years.
Mr Baker's justification for proposed pruning of the Weeping Bottlebrush was based on the density of foliage overhanging the boundary, while his issues with the Ash trees comprised overhanging foliage, shading of his front lawn and mess from leaves which he said was exacerbated by the Ash trees being deciduous, and the influence of prevailing south-westerly winds.
Contrary to claims and answers provided by the applicant in Exhibit B, the respondent submitted that neither the Ash trees nor the Weeping Bottlebrush were part of a hedge. Ms Swan conceded that the Lilly Pilly trees did form a hedge but claimed that they do not cause a severe obstruction of sunlight, and that any obstruction of sunlight they may cause "is limited to the garage", rather than impacting the applicant's dwelling.
Ms Swan stressed the benefit she received from the shade cast by the trees, and the contribution of the trees to the scenic value of the neighbourhood, and to her privacy, garden design and landscaping. Ms Swan said that the trees contribute to the local ecosystem and biodiversity, and she noted green tree frogs, and various species of birds that inhabit and feed off the Lilly Pilly's and Weeping Bottlebrush.
The respondent opined that the heavy pruning required to reduce the Ash trees to Mr Baker's proposed "fence height or lower", would likely kill these trees. The respondent acknowledged that the Weeping Bottlebrush and Lilly Pilly's were likely to tolerate pruning but she suggested that only the Weeping Bottlebrush foliage overhanging the applicant's land required pruning rather than the tree's height. Ms Swan noted that pruning the height of the Lilly Pilly's and Weeping Bottlebrush to the level proposed by Mr Baker's would have a major impact on her privacy and would result in her outlook changing from aesthetically pleasing vegetation to a view comprising the applicant's garage wall, and front yard.

Jurisdictional requirements

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?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
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).
The Lilly Pilly trees were about 6m high and were growing in an uninterrupted row, with close, regular spacing and a linear formation along the boundary. I was satisfied they had been planted so as to form a hedge, and therefore, s 14A(1) of the Trees Act is engaged.
I was not satisfied that the two Ash trees or the Weeping Bottlebrush were part of a hedge. It was obvious that the Ash trees were individual amenity trees planted well apart and located far from the Lilly Pilly hedge, and there was no feature or association between these two trees that even began to persuade me that they comprised a hedge. The fact that they were the same species of Ash tree was irrelevant in the site's context. While the Weeping Bottlebrush was growing near the boundary, this was all it shared in common with the hedge, as it was growing some metres away from the Lilly Pilly trees and displayed no obvious similarity regarding form, habit, foliage or flower.
Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the 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.
Mr Baker owned his property, and the Lilly Pilly trees were situated on adjoining land, thus satisfying s 14B of the Trees Act.

Did the applicant make a reasonable effort to reach agreement?

Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. At page 3-4 of Exhibit 1, Ms Swan claimed that Mr Baker had not reasonably communicated his pruning request and proposed orders prior to making his application, and that she had not received a letter of demand, dated 3 November 2021 (letter), which Mr Baker included with his application. On this basis, Ms Swan challenged whether Mr Baker had satisfied s 14E(1)(a) of the Trees Act.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides extensive commentary about the requirement, at s 10(1)(a) of Pt 2 of the Trees Act, for applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. An identical requirement applies at s 14E(1)(a) of the Trees Act for Mr Baker's Pt 2A application relating to a hedge. Thus, the following extract applies equally to s 14E(1)(a) of the Trees Act.
At [191] - [194] of Robson, his Honour says: "191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
In consideration of this commentary, the Court requires no specific manner of notice by the applicant, nor of the content or nature of negotiations between the parties. Regardless that Ms Swan may not have received the applicant's letter, the respondent was aware that the applicant had issues with her trees, as evidenced by her prior pruning in response to Mr Baker's complaints. In June 2022, the applicant attempted to arrange mediation with the respondent through a Community Justice Centre (CJC), as recommended by the Court, and Ms Swan acknowledged receipt of two requests for such mediation from the CJC.
There is no requirement for Ms Swan to agree to such mediation requests, but these efforts by Mr Baker, and his constructive engagement at the onsite hearing, is sufficient to satisfy the requirements of s 14E(1)(a) of the Trees Act, to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
I am also satisfied that the applicant has given notice of the application in accordance with s 14C of the Trees Act, as Mr Baker provided the application to the respondent during November 2022, and he submitted evidence of having lodged the application documents with Maitland City Council on 14 December 2022. Therefore, s 14E(1)(b) of the Trees Act was satisfied.

Is the obstruction of sunlight to a window of a dwelling severe?

The next step is to assess the severity of the obstruction of sunlight to a window or windows of the applicant's dwelling as a consequence of any or all of the trees in the hedge.
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.

Obstruction of sunlight to a window of a dwelling

The Lilly Pilly tree at the north-western end of the hedge was located about 6m west south-west of the only window in the living room of the applicant's dwelling which faced the hedge. Most of the living room windows face north-west. At question 4 of Exhibit B, Mr Baker noted that "The side of our house comes into shadows after about 2 pm. Our solar panel stops working, and the side of the house has green moss on it".
The jurisdiction of s 14E(2)(a)(i) of the Trees Act applying to obstruction of sunlight is restricted to obstruction of sunlight to a window of a dwelling situated on the applicant's land that occurs as a consequence of a hedge. As the sun's arc in winter is distinctly to the north, in summer the sun's arc is slightly north of vertical, and the northern most hedge tree is west south-west of the applicant's nominated window, I was not satisfied that sunlight to this window could be severely obstructed by the hedge. Rather, any such obstruction is likely to be negligible to minor.
"The side of our house" referred to by the applicant is the side of the garage facing the respondent's property and this wall contains no windows. Even if it had contained windows, the significance of obstruction of sunlight to windows of a garage would be heavily discounted relative to a living area or kitchen. A similar discount of the significance of obstruction of sunlight usually occurs with a toilet or laundry but more so with a garage, as dwell may be defined as 'live or reside' and one does not usually dwell in a garage.
The hedge is unlikely to obstruct much sunlight to the applicant's rear veranda except perhaps during late afternoon, but in any case, the veranda does not satisfy jurisdictional requirements of s 14E(2)(a)(i) of the Trees Act as it is not a "window of a dwelling". Similarly, obstruction of sunlight to solar panels does not engage the jurisdiction of the Trees Act as a solar panel is not a "window of a dwelling".
Though the applicant claimed that the Ash trees obstruct sunlight to windows at the front of his dwelling and to his front yard, the Ash trees are individual trees, not members of a hedge, so again the jurisdiction of the Trees Act is not engaged. For this reason and because the jurisdiction does not apply to yards or driveways, shading of the applicant's front yard by the Ash trees is not considered under the Trees Act.
Consequently, I am not satisfied that the hedge caused a severe obstruction of sunlight to the applicant's nominated window, other related claims by the applicant failed to engage the jurisdiction, and therefore s 14E(2)(a)(i) of the Trees Act is not satisfied.
Had I, however, determined that obstruction of sunlight to a window of the applicant's dwelling as a consequence of any or all of the trees in the hedge was a severe obstruction, and s 14E(2)(a) had thus been satisfied, the Trees Act would require me to consider the balancing of interests in s 14E(2)(b), which 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.
In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F of the Trees Act is required.
Section 14F(a) considers "the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application". The Lilly Pilly trees are growing close to the boundary with a minor to moderate foliage encroachment beyond the boundary into the applicant's property. However, the side wall of the applicant's garage facing the respondent's land was unusually close to the boundary, as were the garage roof and gutters, thus increasing the likelihood of leaves dropping and blowing onto the roof, and resulting in relatively difficult access for maintenance.
Mr Baker noted leaves on the garage roof, and in its gutters, the high cost of gutter guard, and leaves potentially rusting the roof, as reasons to justify heavy pruning of the hedge to below the gutter line.
Particularly with applications under Pt 2 of the Trees Act covering damage and/or injury resulting from trees, a common theme arises from leaves and other debris that fall or blow from trees onto yards, houses and gutters and the associated maintenance burden. In response to such claims, a Tree Dispute Principle was established at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker), as follows: "20 It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: "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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.""
This Tree Dispute Principle established in Barker has been consistently applied by the Court, and the tree debris described by the applicant, observed on his land, and shown in the photographs which the applicant supplied to the Court fell well within the parameters that arise from the Tree Dispute Principle in Barker. The installation of gutter guard has also been included in judgments as a reasonable measure to reduce maintenance. While I acknowledge that diminishing physical capacity that comes with aging makes such maintenance more difficult to undertake, it is common for people to occasionally procure assistance to compensate for their reduced capacity.
Though the applicant claimed in his letter to "have spent in excess of $2000.00 on gutter guard mostly due to Your [the respondent's] trees", the applicant's garage gutter guard in his photograph 2 was a square wire mesh that was not fit for purpose nor appropriately installed and was therefore unlikely to be effective in excluding leaves from the gutter. Readily available, modern proprietary gutter guard would be much more useful.
Therefore, even if Mr Baker had made an application under Pt 2 of the Trees Act, based on a claim of damage caused by leaves falling or blowing from Ms Swan's trees, upon consideration of the Tree Dispute Principle in Barker, the Court would have no powers to order intervention with the respondent's trees.
Cleaning of mould or algae on the side of the applicant's garage which Mr Baker claimed was caused by the hedge, is also considered to be reasonable maintenance, as the maintenance expectation arising from Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], to include the cleaning of mould and slime.
Though Mr Baker preferred that all branches and foliage of Ms Swan's trees should be restricted to the respondents' land and not encroach beyond the boundary, this is not a requirement under the Trees Act, unless the trees are causing damage. This is considered at [56] of Robson, where Preston CJ, discussing the issue of nuisance, states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action...".
At [171] of Robson, his Honour also says: "[171] … annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) 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."
Factors relevant to s 14F of the Trees Act submitted by Ms Swan and addressed above at [14] - [15], are the contribution of the Lilly Pilly trees to the local ecosystem and biodiversity (s 14F(g)), the Ash trees' intrinsic value to public amenity (s 14F(i)), the negative impact on tree health and longevity likely to result from the applicant's proposed heavy pruning (s 14F(k)), and the privacy, shade, and contribution to garden design and landscaping that the respondent's trees provide (s 14F(l)).

Conclusion

The applicant's nominated dwelling living room window was not severely obstructed by the hedge. At best, such obstruction was minor, and therefore did not satisfy the requirements of s 14E(2)(a)(i) of the Trees Act.
Even if the obstruction of sunlight to the applicant's nominated dwelling window had been severe, the various relevant considerations submitted by the respondent that relate to s 14F of the Trees Act, would have been balanced against the imperative to intervene with some or all of the Trees, as required by s 14E(2)(b) of the Trees Act.
None of the applicant's other claims of obstruction of sunlight related "to a window of a dwelling" and, therefore, were not covered by the jurisdiction of the Trees Act.
The applicant's claims regarding encroachment of foliage, potential damage arising from leaves in gutters, and excessive maintenance that may be required to clear leaves from lawns and driveways, and from the garage roof and gutters, are dismissed after consideration of the Tree Dispute Principle established at [20] of Barker, and the commentary of Preston CJ, at [56] and [171] of Robson.

Orders

The orders of the Court are: 1. The application is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2023

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Judgment (12 paragraphs)

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Cases Cited (5)