Bamford v Thrush

Land and Environment Court (NSW)|2021-05-13

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

Background

Ian Bamford, the applicant, occupied his Kellyville property in about 2002. He shares a boundary with the respondents, Trevor and Cathryn Thrush. Mr Bamford's western side boundary is the respondents' rear boundary.
From 2002 until around 2013, Mr Bamford enjoyed uninterrupted views of the sky, sunsets, and distant mountains, looking westward across a large adjacent, undeveloped block of land. In 2013, this block was subdivided into housing lots, and, soon after, Mr and Mrs Thrush purchased one.
In order to establish privacy in their yard, in about 2014, Mr and Mrs Thrush planted a row of 10 x Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress) (the trees), parallel with, and adjacent to the common boundary. Behind the hedge, an existing timber boundary fence, about 1.8 metres high, separates the properties.
Over the intervening years the Cypress trees have grown larger and taller, until the applicant now says that some of the west-facing windows of his dwelling receive no sunlight for much of the day, particularly in winter. He also claims that the trees severely obstruct his views from windows.
Mr Bamford has submitted an application with the Land and Environment Court, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for Mr and Mrs Thrush "to remove the trees and plant different species that reach no higher than 2.4 metres at maturity".

Framework

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

Onsite hearing: observations and submissions

The hearing took place onsite. Both parties were present. I bring my own arboricultural expertise to the matter, in particular regarding the growth habit of this species.
The ten trees are growing in an uninterrupted row about nine metres long, with regular spacings, so as to form a hedge. Their foliage creates a dense green wall, through which one effectively cannot see. The trees have not been pruned in the past, and their height is about 5.8 metres.
Mr and Mrs Thrush proposed that "no order be made to interfere with the trees, as the level of obstruction of view or sunlight does not outweigh the advantage of retaining the hedge". They value the trees for the privacy they provide, for their contribution to the garden design, and for their amenity. Mr Thrush notes that "it creates a verdant ambience to the surroundings and a buffer to protect both parties from nuisance and noise".
The applicant's property is two-storey brick construction, and is positioned only about two metres from the common boundary. The respondents' property is to the west of the applicants', and their dwelling is set near the middle of their block, with a lawn between the house and the trees. There are windows along the western side of the applicants' house, and the respondents are concerned about overviewing of their backyard, and the rear of their house, from these windows.
Mr Bamford also noted that the trees' trunks were growing very close to the boundary, and thus likely to cause future damage to his property. As noted prior, the applicant seeks that the Cypress trees are replaced with a smaller species.

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 Trees 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).
These ten trees were planted in an orderly row, they have grown to over five metres tall since then, and therefore, s 14A(1) is satisfied for this hedge.
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.
Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
The applicant advised that, acting on Mr Thrush's suggestion, he had organised mediation through a Community Justice Centre (CJC), but that Mr Thrush had subsequently cancelled. A letter to this effect was included with the application, as was a comprehensive log, displaying communication between the parties since 2018.
I am thus satisfied that the applicant has met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and also satisfied that the requirement of s 8(1), to give 21 days' notice of the lodging of an application, has been met.
The next step is to assess the severity of the obstruction of views from, and sunlight to, the applicants' 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…

The Applicant

Mr Bamford nominated two west-facing windows. W1 is a large downstairs window, 2.6 metres wide x 2.1 metres high, which, he claims, "provides 90% of light to our Lounge/Dining room", and from which he claims that the "hedge, which is 2 metres from the window, obstructs 95% of the available sunlight", during summer, and all sunlight in winter.
W2 is an upstairs, spare bedroom, with only one moderate sized window. Mr Bamford claims that all sunlight is obstructed from W2 in winter, as a result of the hedge, and about four hours sunlight is 'lost' in summer.
Mr Bamford also claims that the hedge totally obstructs views from both windows.

The Respondents

Mr Thrush cited Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), which is used by the Court to inform view sharing situations. He noted [26], where Roseth SC, says; "The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial…".
He also noted [27], which says; "The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries."
With reference to Tenacity, Mr Thrush claimed that the views Mr Bamford seeks to retain, or gain, are narrow land views, which are far from iconic. He noted that they are gained entirely across the applicant's side boundary, and include the respondents' entire block.
Mr Thrush also cited Schou v Gonsalves [2011] NSWLEC 1174 (Schou), which, makes reference to relevant s 14F factors considered when contemplating intervention with trees. At [20], Fakes C, and Galwey AC, state; "In our view, the relevant matters under s 14F here are: (a)The trees are wholly located on the respondents' property. One row of trees is located close to the common boundary with the applicant's property; the other row is on the opposite side of the driveway. The trees were planted in that location to provide a visual screen. (b)The trees were planted after the construction of the applicant's dwelling; (c)The trees have grown to their current height during the period that the applicant has owned her property; (h) The trees contribute to the scenic value of the land on which they are growing - they soften the landscape and provide visual screening between built forms; (k) The species is tolerant of pruning; (l) The respondents' position is that the trees are essential to their privacy given the size and position of the applicant's dwelling and the sightlines between bedrooms in the two dwellings; similarly, the respondents contend that the trees help reduce traffic noise from the nearby bypass; (m) There is no other obstruction to sunlight to these two windows; (o) The trees obstruct morning sunlight to the windows for a period of perhaps two to three hours; (p) The trees are evergreen; (r) The part of the dwelling to which sunlight is obstructed includes two separate areas: W3 is a laundry door; W4 is the dining room which is part of a large open plan living room."
In Schou, the Commissioners were not satisfied that the severity and nature of the obstruction warrants any action that would be required to remove the obstruction.
Mr Thrush noted s 14F(h) in consideration of the hedge 'softening' the landscape between the built forms of the houses, particularly the tall stark side wall of the applicant's house. Much to Mr Bamford's chagrin, Mr Thrush stressed the trees' contribution to the scenic value of the land on which they are growing, and that their presence helps address other issues, such as noise.
He also referenced s 14F(l), in highlighting the hedges' contribution to his family's privacy, given the size and position of the applicant's dwelling, and sightlines between the two dwellings. In this respect, Mr Thrush claims that V2, from the upstairs bedroom is only partially obstructed by the hedge, and that the primary view from V2 is into his backyard.
Mr Thrush took the Court to photographs that displayed the presence of a medium size Pine tree in their rear yard, prior to his house build, and before the trees were planted. He asserted that had the Pine been absent, Mr Bamford would probably have been required to take measures to reduce oversight from V2. He added that the 'Pine' was found to be structurally unsound, and removed soon after.
Mr Thrush contended that the views from V1, in the downstairs 'dining/lounge' area were not iconic, but were simply long distance district views. With reference to s 14F(r), he noted that neither window was in a priority location in terms of sunlight or views. W2/V2 was a spare bedroom, while W1/V1 was a formal area, not the main informal living area.
Mr Thrush also contended that Mr Bamford was exaggerating the extent of sunlight lost to the hedge. He claimed that the western orientation and the roof overhang resulted in sunlight only being available to both windows after 1pm. With reference to local government guidance informing overshadowing, he claims that sufficient direct sunlight is available to W1 during the period from 1pm until 3pm, for any obstruction to be considered less than severe.
In concluding his submission, Mr Bamford stressed that the view obstruction to the downstairs window is severe, and claimed that because W2 was 'only' 1.2 x 1.2 metres, and had plantation shutters, oversight into the backyard was unlikely. Citing Simon v Goltsman [2021] NSWLEC 1069 (Simon), he notes Galwey AC's comment, at [63] that "…pruning more than 1.5 metres from the tops of the trees would lead to their decline", to reinforce his claim that removal and replacement is the only viable solution.

Is the obstruction of sunlight severe?

Mr Thrush correctly claimed that Mr Bamford can only receive afternoon light to his west-facing windows. I also agree that direct light would be available to downstairs W1, in the early afternoon, contrary to Mr Bamford's assertion, even though the hearing was less than six weeks from the winter solstice. Mr Bamford has not provided shadow diagrams to support his case, and I accept that the lounge/dining area impacted by the hedge is not the main living room.
Notwithstanding that these factors display a situation on the margin, with respect to severity of obstruction, other contributing elements are much more stark. The hedge is about 5.8 metres in height, and about two metres from the applicant's dwelling. Though less than ten years old, the foliage already forms a wall-like screen. Based on the characteristics of the site, including the region's rich clay soils, and my familiarity with this species of tree, one could expect them to grow up to one metre per year. They are healthy trees that are growing vigorously and, without regular intervention, are likely to grow much taller, readily reaching a height of 20 metres when left unpruned.
Leyland Cypress are ideal for use on rural properties but are renowned for causing obstruction of sunlight and views in urban areas. These trees have reached a size and rate of growth where they will continue to shade windows for longer periods of the day if they are not maintained. On balancing all these considerations, I am satisfied that the hedge is depriving the applicant of reasonable amenity by severely obstructing sunlight to a window of a dwelling (W1), situated on the applicant's land, and thus s 14E(2)(a)(ii) of the Trees Act is engaged.

Is the obstruction of views severe?

With respect to views, I am not satisfied that the obstruction is severe. While the notion of iconic views must be considered in the context of each site, I agree with Mr Thrush, that district views to the west, regardless of whether they include the distant Blue Mountains and the sunset, are not sufficiently significant that the obstruction of such views, from W1 or W2, should be considered a severe obstruction.
While Mr Bamford understandably covets the wide-open westward views, which he enjoyed prior to construction of the Thrush's dwelling, it is not a reasonable expectation to retain this view, as it is only available through and across the respondents' property. The fact that neither window is in a genuine living area, further mitigates the obstruction's significance.
As s 14E(2)(a)(ii) is met for the hedge, due to the severe obstruction of sunlight to a window, there is a need to consider the balancing of interests required by s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (2) … (a) … (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 the matters in s 14F is required. Mr Thrush emphasised three of these matters in his contentions. I agree that the trees contribute to the scenic value of the land on which they are growing. They soften the landscape and provide visual screening between built forms of the two dwellings.
I also agree that the hedge makes a significant contribution to the respondents' privacy, given the size and position of the applicant's dwelling, and sightlines between the two dwellings. Any orders made will be cognisant of this.
While I also agree with Mr Thrush's contention regarding s 14F(r), in that neither window was in a priority location in terms of sunlight or views, I have nonetheless determined that sunlight is severely obstructed from W1, and that the obstruction of sunlight would likely become increasingly severe in the absence of intervention with the trees, and that this impact would spread beyond the lounge/dining room.
With respect to Mr Bamford citing Galwey AC, at [63] of Simon, stating that "pruning more than 1.5 metres from the tops of the trees would lead to their decline", this statement was made in the context of mature trees about 10m metres high being pruned at about five metres, with thick stems being cut.
This case is quite different. As the trees are still relatively young, for the foreseeable future, only small, light growth will require pruning. Even beyond that, only small stems should be impacted, if the trees are maintained regularly. This species can normally be pruned relatively often to maintain height without unduly affecting their health or function.
Though Mr Bamford is concerned about future damage as a result of the trees thickening trunks and roots, given the absence of current evidence to substantiate this concern, and the respondents' reasonable concerns about maintaining privacy, it would not be appropriate to order removal of the trees.
Should the situation change as the trees mature, Mr Thrush has the option of replacing the trees, with the parameters of the orders transferring to any replacement trees.

Conclusions

A hedge of Leyland Cypress trees, planted in about 2014, forms a wall-like screen which is severely obstructing sunlight to western side window, W1, of the applicant's dwelling. The impact will be worse during winter, when light and warmth from the sun is generally most valued.
The respondents' desire for privacy is important, however, so orders will be made for pruning, rather than the removal and replacement sought by the applicant.
The trees are still relatively young and of a resilient species, so they should respond positively to regular light pruning, particularly if kept well-watered during dry summers.
Being spread along the western side of the applicant's dwelling, all trees in the hedge have the potential to contribute to sunlight obstruction, particularly during the afternoon. Therefore, the following orders apply to the entire hedge.

Orders

The orders of the Court are: 1. Within 30 days of the date of these orders, the respondents shall, at their expense, prune the height of the hedge to no higher than 3.9 metres above ground level, measured from the base of the hedge. 2. The respondents shall, at their expense, maintain the hedge so that at no time in the future does its height exceed 4.2 metres above ground level, measured from the base of the hedge, and, so that at no time in the future does foliage from the top metre of the hedge, protrude over the shared property boundary into the applicant's property. 3. The pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. Should access be required to prune the top of the hedge from within the applicants property, so as to comply with order (2), or to remove refuse, the applicant shall provide access to the respondent, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents. 5. The works shall be completed during reasonable working hours. ………………………… J Douglas Acting Commissioner of the Court

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: 27 August 2021

At a glance

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Judgment (13 paragraphs)

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Cases Cited (5)