Barstow v Ainsworth - [2023] NSWLEC 1442 - NSWLEC 2023 case summary — Zoe

NSWNSWLEC

Barstow v Ainsworth

[2023] NSWLEC 1442

Land and Environment Court (NSW)|2023-04-26

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-04-26

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Judgment

COMMISSIONER: Melanie Barstow (the applicant), and Edward and Ruth Ainsworth (the respondents), share a common east - west side boundary between their waterfront properties in Eleebana. Both parties enjoy sweeping views over Lake Macquarie to the north, west and south-west, and gain street access from the east. The applicant's property is located south of the respondents' land.
The Ainsworth's dwelling, which the respondents occupied in 1988, is located at the eastern end of their land, with a veranda at the dwelling's western end overlooking a pool in the rear yard. In an affidavit dated 5 April 2023 (Ainsworth affidavit), Mr Ainsworth said many of the trees were already established upon purchasing the property, and that he and his wife have "planted, maintained, removed where necessary, and pruned plants" during their subsequent 35 years of occupation.
The applicant purchased her 2-storey property in mid - 2019, and soon after, lodged a development application (DA) with Lake Macquarie Council (Council) for renovations, including reconfiguration of internal rooms.
The applicant's dwelling is positioned at a higher level than the respondents' land, and a concrete block wall on the boundary separates the properties. This wall supports a paved path between the applicant's dwelling and the common boundary. It's not a retaining wall bearing lateral pressure, however, as the applicant's dwelling has pier and beam foundations independent of the wall, which also support the side path.
The Ainsworth's submitted that the trees provide important privacy protection by mitigating oversight by the applicant's family, particularly from upstairs windows and the west end deck, that they soften the impact of the applicant's dwelling wall and contribute aesthetically to their landscape.
Once the applicant's family occupied their renovated dwelling, the applicant's partner, Mr Peter Cruwys, requested that the respondents prune boundary trees approximately to the boundary fence level to improve light levels within the applicant's dwelling. After this request was denied, Ms Barstow made an application to the Land and Environment Court, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).

[2]

The onsite hearing

The onsite hearing commenced with an inspection of the respondents' trees, located near the common rear yard boundary in garden beds that progressively increased in height from west to east. Trees 1 - 5 (T1 - T5) at the western end are semi-mature Cupressocyparis leylandii 'Leighton Green' (Leyland Cypress). They were planted in or around December 2019 in a narrow garden bed close to the boundary adjacent the applicant's boathouse, to replace mature trees of the same species that had become senescent.
T6 - T9 are mature Leyland Cypress growing in progressively higher, wider garden beds east of T1 - T5. The applicant claimed these trees are significantly obstructing sunlight to her dwelling and causing damage. T10 is a long established, mature Plumeria acutifolia (Frangipani), and T11 - T23 are Syzygium australe (Lilly Pilly), also said to be severely obstructing sunlight and views from the eastern end of the applicant's dwelling.
The Court next inspected the applicant's back yard and clarified obstruction by the trees, and privacy and other benefits the trees provided to the respondents' pool area, back veranda, and dwelling, prior to oral submissions.
On 18 April 2023, the applicant lodged amended proposed orders with the Court which expanded the level of detail of the proposed orders in her application. The respondents opposed the amended orders based on late service, and because the amended orders "are overly complicated, severe and unreasonable", as they collectively sought to provide the applicant with improved sunlight and view access relative to that available when the applicant's property purchase was settled in June 2019.
Notwithstanding the late service, I find no good reason to refuse granting leave for the applicant's amended orders. It is in the interest of justice and transparency for submissions to be accepted, provided no party is disadvantaged, and I find no detriment to the respondents from acceptance of the amended proposed orders. The respondents' solicitor, Mr Jayne, at par 51(c) of his Written Submissions, acknowledged that the result of both sets of proposed orders is effectively the same, being "pruning to the top of the existing fence".
Applicant's Amended Proposed Orders: 1. Within 60 days of the date of these orders, the respondents, (at their expense), to remove trees T1 to T10 which are located on the respondents' property and to affect such removal within 60 days of the date of these orders. 2. Any roots not removed pursuant to Order (1) are to be pruned to the common boundary between the respondents' property and the applicant's property. 3. The works in Orders (1) and (2) are to be carried out by an arborist of AQF level 3 qualifications with appropriate insurances and the work shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The respondents are to give the applicant 14 days' notice of the work in Orders (1) and (2). 5. The works in Orders (1) and (2) are to be carried out at the Respondents' expense. 6. If the works in Orders (1) and (2) are not carried out by the respondents within 60 days of the date of these orders, the respondents are to grant the applicant access to the respondents' property for the purpose of carrying out the work in Orders (1) and (2) at the respondents' expense. 7. Within 60 days of the date of these orders, the respondents are (at their expense) to engage and pay a suitably qualified and experienced arborist (minimum AQF level 3) with the appropriate insurances to: 1. prune all trees along their side of the common boundary shared with the applicant (T11 - T23) to reduce their height to the lower of: 1. 1.8 metres above RL 6.92 Australian Height Datum (AHD) measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune the tree along the side of the common boundary shared with the applicant (T10) to reduce the height to the lower of: 1. 1.8 metres above RL 6.81 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune the tree along the side of the common boundary shared with the applicant (T9) to reduce the height to the lower of: 1. 1.8 metres above RL 6.39 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune the tree along the side of the common boundary shared with the applicant (T8) to reduce the height to the lower of: 1. 1.8 metres above RL 6.08 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune the tree along the side of the common boundary shared with the applicant (T7) to reduce the height to the lower of: 1. 1.8 metres above RL 5.57 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune the tree along the side of the common boundary shared with the applicant (T6) to reduce the height to the lower of: 1. 1.8 metres above RL 5.01 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. prune all trees along their side of the common boundary shared with the applicant (T1-T5) to reduce their height to the lower of: 1. 1.5 metres above RL 4.44 AHD measured from the applicant's side of the boundary fence; and 2. the top of the boundary fence along the common boundary. 1. Prune the southern sides of all trees (T1 - T23) so that no branches or foliage overhang or extend southward beyond the southern boundary into the applicant's land. 1. Each year in April, beginning April 2024, the respondents are to engage and pay for a suitably qualified and experienced arborist or horticultural contractor (minimum AQF level 3) with appropriate insurances to perform the works above in Order 7. 2. The respondents must not plant, or cause to be planted, any trees or hedges along their southern boundary with (the applicant's property) and allow those trees or hedges to grow higher than the heights in Order 7 and: 1. obstruct sunlight to the windows of (the applicant's property). 2. obstruct views from windows W4, W5, W6 and the dinning and lounge area to the north and northwest over Lake Macquarie. 1. All tree pruning and removal works ordered above are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 2. The respondents are to give the applicant 7 days' notice of the tree removal and pruning in Order 7 and each pruning event in Order 8. 3. The applicant is to allow any access required by the respondents' contractors for the purposes of completing and cleaning up the works in Orders 7 and 8.

[3]

Respondents Alternative Orders:

The respondents proposed Alternative Orders, as follows: 1. T1 - T6, T 10 and T19 - T23 form no part of the orders. 2. T7 - T9, and T11 - T18 shall be pruned annually in April to RL 11900. 3. All foliage overhanging the common boundary from trees T1 - T23 shall be pruned in line with the existing common boundary fence. 4. Pruning and debris removal costs shall be borne by the respondents. 5. The respondents shall provide the applicant 7 days' notice of pruning, and access to applicant's land if required for pruning and debris removal. 6. The respondents shall ensure that tree pruning contractor has appropriate insurance cover, and shall provide contractors' insurance documentation to applicant, upon request.
The applicant relied on: 1. Affidavits of Melanie Jane Barstow, the first dated 12 January 2023, and the second filed with the Court on 8 March 2023, 2. Affidavit of Peter Cruwys, including photographs "PHC-1", filed on 18 April 2023, 3. Tree Dispute Application - Form C, filed on 27 January 2023 (Exhibit A), 4. Tree Dispute Claim Details - Damage and Injury - Form H, filed on 27 January 2023 (Exhibit B), 5. Tree Dispute Claim Details - High Hedges - Form G, filed on 27 January 2023 (Exhibit C), 6. Amended Expert report and covering letter of Andrew Murdoch of Earth Surveying, filed on 18 April 2023 (Exhibit D), 7. Expert report of Andrew Doring of Doring Design, filed on 18 April 2023 (Exhibit E), 8. Expert report on views and light, dated 16 January 2023, by John O'Grady, Planner, of OG_URBAN and supplementary letter of John O'Grady, dated 16 April 2023 (Exhibit F), 9. Photographs labelled Annexure F within Exhibit C (Exhibit G), 10. Amended Expert report of Steve Watson of ArborCert Pty Ltd, filed on 18 April 2023 (Exhibit H), 11. Amended Expert report of Chad Skelton of Skelton Consulting Engineers, filed on 18 April 2023 (Exhibit J), 12. Applicant's amended proposed orders, filed on 18 April 2023.
The respondents relied on: 1. A3 1:100 scale drawing of trees against applicant's dwelling (Exhibit 1), 2. Ainsworth affidavit (including "EJA-1"), 3. Expert report of Rex Henderson of Henderson Civil Engineering dated 27 March 2023 and filed on 5 April 2023 (Henderson report). 4. Written submissions dated 25 April 2023.
Mr Cruwys disputed Mr Ainsworth's claim, at par 5 of his affidavit, that after purchasing the adjacent property to his north in 2010, Mr Ainsworth consolidated his existing property adjacent to the applicant with the newly purchased property into a single address. I accept Mr Cruwys' submission that only the respondents' property immediately adjacent to Ms Barstow's land is relevant to the application, as the respondents' adjoining properties remain on separate titles.

[4]

Jurisdictional requirements - Part 2

I will address the application under Pt 2 of the Trees Act initially, based on the following provisions: Part 2 Court orders - trees that cause or are likely to cause damage or injury … 7 Application to Court by affected landowner An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. … 9 Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or (c) require the taking of specified action to prevent injury to any person, or (d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or (f) authorise the applicant concerned to take specified action to prevent injury to any person, or (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or (h) require the payment of costs associated with carrying out an order under this section, or (i) require the payment of compensation for damage to property, or (j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth. 10 Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. … 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.

[6]

Damage to boundary wall

The survey (Exhibit D) showed that the applicant's boundary wall was contained on the applicant's land. Though Mr Ainsworth submitted that parts of the wall may protrude onto his land by about 25 - 50 mm, he conceded that the wall belonged to the applicant. In inspecting the wall's outer face exposed from the respondents' land, I found minor cracking of mortar joints and entry of small roots adjacent to T 6, T7, and T10.
At question 4 of her 'Tree Dispute Claim Details - Damage to property or injury to a person' (Exhibit B), the applicant refers to Exhibits J and H, the engineer's and arborist's reports, respectively. In Exhibit J, Mr Skelton commented on "Actual structural damage" and "Potential structural damage" to the applicant's wall, after inspecting the back of the wall from the subfloor space under the applicant's side path on 14 November 2022.
Based on tree roots observed in the subfloor space that "appeared to be extending through cracks in the northern boundary unreinforced masonry wall", Mr Skelton opined that, as these tree roots grow, "they will exert additional pressure on the wall and foundation leading to extensive damage of the wall and possible collapse of the wall and suspended concrete path that the wall is supporting…". He added that, due to close proximity of the applicant's house, the roots are likely to damage house foundations.
On page 10 of Exhibit J, Mr Skelton discussed and rejected the option of root barriers, claiming they would compromise the foundation of the "northern boundary wall and path above", and instead recommended removal of all 23 trees "to protect the structure (of the applicant's dwelling) from further structural damage".
The Henderson report, for the respondents, claimed that roots in the wall could not cause structural damage to the house, "given that the house is supported (in that location) on its own independent and substantial (pier and suspended reinforced concrete beam) foundation which is clear of the ground". Mr Henderson said he observed several "hair line" (less than about 2mm wide) horizontal and vertical cracks on the wall's outer face, roots up to about 5 mm wide that had grown through the wall, and roots "growing on and clinging to exposed (inner) face of the wall".
In response to Mr Skelton's claim that the wall cracking "is likely to have been caused by tree roots", Mr Henderson said, "Given that the masonry wall is approximately 50 years old and that the roots are very small, it is unlikely that they have contributed to the cracking observed, nor will they cause significant cracking in future." He concluded that "the masonry block wall has performed well for approximately 50 years, it remains straight and has not rotated". Neither the applicant, nor Mr Skelton disputed Mr Henderson's claim that his measurements showed the wall was "vertical within construction tolerances, and straight over its entire length".
Mr Henderson said that the path was supported on steel beams suspended between the wall and the house foundations at 2.4 m centres, and that these steel beams were heavily corroded, and required attention. Though I could not discern these beams in photographs in either engineering report, various photographs showed extensive rust of corrugated iron (formwork) in the void below the path.
Mr Henderson submitted that diagonal cracks near an opaque glass block window near the applicant's boatshed (at the wall's western end) were due to a "cold joint" in the concrete caused by poor construction techniques and insufficient bearing capacity of the soil beneath the boatshed foundations, and "is not caused by the presence of the trees".
In response to the Henderson report and the Ainsworth affidavit, Mr Skelton conducted a site reinspection on 12 April 2023, which informed a supplementary report dated 17 April 2023. Mr Skelton agreed with Mr Henderson's claim that the concrete block wall was mainly reinforced, and core filled, and Mr Henderson's explanation of cracks around the glass block window near the applicant's boatshed.
Mr Skelton, however, disputed Mr Henderson's submission that roots were restricted to less than 5 mm diameter as he claimed to have found a root within the subfloor space with a diameter greater than 15 mm, that "will certainly exert pressure on the surrounding wall and footings". Mr Skelton expressed particular concern about the wall's vulnerability to horizontal loads resulting from tree roots, including recently planted Leyland Cypress trees next to the boatshed, and contemplated supplementary retaining walls or root barriers on the respondents' land. Mr Skelton also disputed whether Mr Henderson's comments on likely future tree growth fell within his field of "engineering expertise".
In his final arborist report of 18 April 2023, Mr Watson provided little assistance to the Court, nor to the applicant. With respect to damage, Mr Watson noted having not gained access to inspect the subfloor area, nor to inspect the wall from the respondents' land, but nonetheless unreservedly endorsed Mr Skelton's root and crack observations and findings.
Mr Watson had classified the 9 Leyland Cypress as 6 young trees at the western end and 3 established trees in the sloping garden beds to their east, but based on my inspection, and the survey (Exhibit D), there were 5 young Leyland Cypress trees (T1 - T5), adjacent to 4 established Leyland Cypress trees (T6 - T9).
For the four disparate groups of trees, T1 - T5, T6 - T9, Frangipani, T10, and semi mature Lilly Pilly's (T11 - T23), Mr Watson's identical recommendation was: "In my professional opinion, the likelihood of further root growth and damage to structures is imminent", and "it is my professional opinion to stop further damage to structures the trees need to be removed".
Based on site and adduced evidence, I am more persuaded by Mr Henderson's submissions than Mr Skelton's. I was satisfied that roots from T 6, T7, and T10 had caused damage to the applicant's wall, but that the damage had minimal impact on the wall's performance.
Nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, s 10(2)(a) of the Trees Act is engaged.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) of the Trees Act, but it can be relevant in determining what orders, if any, should be made. Engagement of s 10(2)(a) requires the Court to consider s 12 of the Trees Act in contemplating orders, and relevant s 12 factors are considered below. ;

[7]

Discretionary matters - s 12

The trees' roots are located close to the wall along the common boundary (s 12(a)).
Interference with the trees does not require separate approval under the Environmental Planning and Assessment Act 1979, the Heritage Act 1977, or the Native Vegetation Act 2003 (s 12(b) and s 12(b1)).
In considering the impact pruning would have on the trees, (at s 12(b2)), I dispute Mr Watson's findings, at par 52 of Exhibit H, that Leyland Cypress, "loves being trimmed and shaped into the perfect hedge as low as 1.5 metres and as narrow as half a metre and doesn't go bald from continuous or hard trimming", "so no matter how hard you prune it back, new shoots will appear". These claims, extracted from http://www.Leylandii.com, accessed 01 August 2023 with information from 2018, a British site promoting this species, fail to consider site context, particularly regarding soil and water limitations, wind exposure, and tree age. While the more recently planted T1 - T5 may tolerate moderate - heavy pruning, removal of foliage from any tree causes root: shoot disequilibrium, and, because trees gain their energy from leaf photosynthesis, heavy pruning of live foliage necessarily causes stress. Particularly in the case of T6 - T9, the health of which Mr Watson reported as "poor", with "some infected with Conifer weevil/ canker, they will die", regrowth would be unlikely to shoot and persist from below the large diameter trunk and branch wounds necessarily exposed by the recommended heavy pruning.
While I accept the claim in Exhibit H, that Lilly Pilly trees generally "respond well to pruning, shaping, and hedging", this determination (referenced to 'Australian Native Plant Society', 2022) is likely based on a regime akin to annual light-moderate pruning. Again, this generalisation by Mr Watson failed to consider the extent of height (and thus foliage) reduction proposed for T11 - T23, from about 5.6 m to 1.5 - 1.8 m, which is likely to increase susceptibility to pests and disease impact and reduce tree health and longevity.
Even more disconcerting was Mr Watson's claim that pruning the mature Frangipani from its current height of about 4.5 m to a height of 1.5 - 1.8 m "should have minimal effect on this tree", because such pruning would likely irreparably destroy the tree's form and structure.
The respondents noted the trees' contribution to their privacy by limiting oversight from the applicant's land, reducing light spill and muffling noise, and to aesthetics, garden design, and landscaping, by softening the imposing appearance of the applicant's north side wall (s 12(b3)).
The web of tree roots in the respondents' sloping garden beds is likely to improve soil stability (s 12(g)).
Under s 12(h)(i) which covers "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage", the Court considers that a certain amount of wear and tear is expected to arise with any structure over time. The advanced age of the applicant's wall, and likely structural inadequacies relative to current construction standards, are considered when determining the relative extent to which a tree/s may or may not have caused alleged damage.

[8]

Conclusions

Though there was evidence of past minor damage by roots of mature Leyland Cypress trees that were replaced in 2019 by T1 - T5, both parties' engineers agreed that cracks in the adjacent wall were caused by poor construction techniques, and the wall required no rectification. The current young trees are unlikely to cause damage in the near future, or even the medium term, given that the adjacent boathouse wall is independent and separated from the applicant's subject wall by a gap of about 100 mm. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Similarly, no damage had been claimed for T11 - T23, none was evident, and nor do these trees appear likely to cause damage in the near future.
The Frangipani, T10, had been growing against or proximal to the wall for over 40 years, with negligible consequence to the wall's performance. Though I lacked the benefit of inspecting the roots in the void under the path, considering the likely species options, the bark on the 15 mm diameter root displayed in photograph 2 on page 5 of Mr Skelton's supplementary report of 18 April 2023, appeared to be Frangipani, along with the white roots on the wall's inner face, while the fine red/ brown tinged roots on the wall appeared to be Leyland Cypress.
The presence of a 15 mm diameter root in the void's soil does not necessarily infer that roots are causing 15 mm wide cracks in the wall. It is not uncommon for roots traversing walls to become flattened and distorted when subjected to forces arising from gravity and wall mass, then to broaden beyond a wall.
Though T6 and T7 had penetrated cracks in the wall and caused minor wall damage, the applicant reported no damage to the path, or other negative consequences arising from the roots' presence in the wall. Nor did the applicant challenge Mr Henderson's opinion, that "the masonry block wall has performed well for approximately 50 years, it remains straight and has not rotated".
Though I lack engineering expertise, the Court often considers engineering advice regarding the interaction between walls and roots, such as in Gardiner v Bisley [2021] NSWLEC 1176 (Gardiner), and Wedes v Fong [2019] NSWLEC 1183. For a similar block wall in Gardiner, the engineer advised, at [74], "…that "the expected service life of a wall structure such as this one is 40-50 years"…". Therefore, though the applicant's wall has performed well, the natural movement of soils over the wall's long life, and normal erosion and wear and tear, are likely to have degraded the wall and caused minor cracking independent of the trees, into which roots may have penetrated.
The applicant submitted that the damage was "ongoing", and Mr Skelton claimed to have observed "significant additional root growth" at the site reinspection on 12 April 2023, relative to the initial inspection on 14 November 2022, but I am not satisfied that this indicates an exponential increase or sudden change in root incursion into the wall, or consequent damage to the wall, that is likely to impact wall performance. I assign little weight to Mr Watson's unsighted and unsubstantiated opinion that "further root growth and damage to structures is imminent". To the contrary, it is likely that roots have been interacting with the wall for many years with negligible consequence to the wall's performance. Due to the independence and strength of the applicant's house foundations and the proximal presence of only minor roots, I am not persuaded that roots are likely to damage the house foundations, and certainly not in the near future.
Nonetheless, root thickening within the wall can be significantly slowed by rubbing roots off the wall's inner face and severing roots, both where they enter the wall, and where they emerge into the subfloor void. Roots grow by extension from their tips and subsequently thicken, subject to physical constraints, the more tip extension growth continues. Therefore, preventing root extension growth from establishing and taking up water and nutrients in adjacent soil beyond the wall will significantly reduce root thickening within the wall, and obviously prevent the roots from spreading. This is a simple and prudent damage mitigation measure readily available to the applicant, along with ongoing monitoring and repetition as required. Any larger roots, such as Mr Skelton's 15 mm example present in the void's soil, should also be removed.
Based on the arboricultural expertise I bring to the Court, from past inspections of mature Frangipani trees growing close to walls and foundations, I have found their relatively soft roots rarely exert strong forces on structures, and they rarely cause structural damage. Nonetheless, the respondents may assist with damage prevention by removing all visible roots from the wall's northern face, excavating to about 150 mm adjacent the bases of T7 - T9, and severing exposed roots growing into or close to the wall that are under 10 mm in diameter. In the absence of roots having impacted wall performance, there is no imperative to insert root barriers, as contemplated between the wall and T6, T7 and T10. Associated major root severance would likely cause leverage by the trees and destabilising lateral pressure against the wall.
Considering the age of the wall, and insufficient evidence substantiating claims that incursion of roots into the wall has impacted wall performance or is likely to materially impact its performance in the near future, the applicant's expectation of increased near future damage by the respondents' trees, is largely speculative. Further, simple measures are available to mitigate wall damage. The respondents gain significant privacy and aesthetic benefits from the trees, and the trees provide a range of environmental benefits. Therefore, I am not satisfied that removal of any of the trees is required, and nor would tree removal be a proportional response to the existing minor wall damage or near future damage, likely to be caused by the trees.
Consequently, the application under Pt 2 of the Trees Act is refused.

[9]

Jurisdictional requirements - Part 2A

Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
Section 14A(1) states: (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).
Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
Section 14E(1) addresses matters of which the Court must be satisfied before making an order, as follows: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Of significance is s 14E(2) of the Trees Act. This states: (2) The Court must not make an order under this Part unless it is satisfied: (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, 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.
If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

[10]

Do the trees form a hedge?

The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
Section 14A(1) states: (1) This Part applies only to groups of two 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).
Overall, the trees were planted relatively close together in a linear configuration, with the appearance of a hedge. They ranged in height from about 3.6 - 8.5 m and the respondents stressed the privacy they provided. Tall, broad, established Leyland Cypress had for many decades grown near the waterfront, as displayed in photograph 23 of "EJA-1", and in 'valuation photograph 1' from 1988 (at page 3 of "EJA-1"), until their replacement with T1 - T5 in late 2019.
Though trees must be planted with an intention to form a hedge to engage the jurisdiction of Pt 2A of the Trees Act, they do not need to be the same species, nor be planted at the same time. The respondents claimed that T6 was not part of a hedge because of large gaps on either side, but at page 79 of "EJA-1", Mr Ainsworth said that two 14-year-old 'pine trees' had been removed near T6 - T9 in late 2019, giving the applicant stated, "large gaps between the remaining trees to enhance views and natural light on the north wall". Considering the large Leyland Cypress trees that preceded T1 - T5 were probably mature when T6 - T9 were planted, there would have been a smaller gap available for planting on the west side of T6. Though T6 was distinctly smaller than its neighbours, this may be explained by the growth constraints of its location, particularly the available soil volume for roots, and water, relative to adjacent Leyland Cypress growing in bigger garden beds to the east.
In Wisdom v Payn [2011] NSWLEC 1012 at [45], a hedge, for the purpose of the Trees Act, was described as follows: ".... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge." The respondents' trees, including T6, were planted to form a hedge, consistent with this description, thus I was satisfied that s 14A(1) of the Trees Act was engaged.
The Frangipani, however, did not satisfy the jurisdiction of s 14A(1)(a) of the Trees Act. In Johnson v Angus [2012] NSWLEC 192 (Johnson), Preston CJ provides commentary in an unsuccessful 'hedge' appeal under the Trees Act. At [43], his Honour, discussing the language of s 14A(1)(a), says (my italics for emphasis): "Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine."
The Frangipani was said to be over 40 years old, and both its appearance and historical photographs provided by the respondents attested to this. T6 - T9 were said to be about 12 - 20 years old, and again, based on their appearance, this was consistent with my expectations. Therefore, the Frangipani was planted at least 20 years prior to T6 - T9 being planted on its western side, and at least 36 years prior to T11 - T23 being planted on its eastern side.
Consistent with the final sentence of [43] of Johnson, the Frangipani tree "cannot later acquire the status of being planted so as to form a hedge by" T6 - T9 and T11 - T23 "being planted to form a hedge in proximity to the" Frangipani. Though the Leyland Cypress trees that preceded T1 - T5 may have been established when the Frangipani tree was planted, they were located far from the Frangipani and thus did not form a hedge with the Frangipani. Therefore, as confirmed by photographs in "EJA-1", the Frangipani was an 'individual amenity tree', not a member of the hedge.
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 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.
The applicant owns her property and claims that the hedge severely obstructs sunlight to at least one window of her dwelling, and views from her dwelling. This satisfies s 14B of the Trees Act.
The applicant has also satisfied s 14C of the Trees Act, which required notice of the application for order/s to be given to owners of affected land. This requirement at s 14C is the same as that satisfied by the applicant at s 10(1)(b) of Pt 2 of the Trees Act. Similarly, s 14E(1)(a), requiring the applicant to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated, had already been engaged at s 10(1)(a) of Pt 2 of the Trees Act.

[11]

Severe obstruction of sunlight to a window, or views from a dwelling

Next, the jurisdiction requires assessment of the severity of the obstruction of sunlight to a window of the applicant's dwelling, or the severity of the obstruction of a view from a dwelling situated on the applicant's land, as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a) states: (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's dwelling is oriented from east at the street entrance to west at the waterfront, with windows facing the respondents' property to the north allegedly obstructed by the hedge. The internal room reconfiguration included removing a ground floor bedroom and, in its place, installing the new kitchen which was integrated with the open plan living area at the dwelling's western end. Decking extended west from the ground floor level, then tiered down onto the concrete boathouse roof. The master bedroom, ensuite, and walk-in wardrobe were installed at the western end of the first floor, and a semi enclosed room and balcony at the eastern end of the first floor were enclosed to form a rumpus room.
At par 12(b)(i) of his affidavit, Mr Ainsworth summarised the applicant's development as, "reconfiguration of the ground floor (which I understand resulted in the kitchen, dining area and living area being relocated from the first floor of the applicant's property to the ground floor)". In his affidavit, at par 8, Mr Cruwys disputed Mr Ainsworth's interpretation, and claimed: "This statement is incorrect as the Property in its original layout had designated kitchen and living zones on the ground floor as well as designated kitchen and living zones on the first floor. The Applicant and I did not relocate the kitchen and living zones. Rather, the original layout and original floor plan was utilised as part of the renovation of the Property."
Mr Cruwys' claim appeared to be a semantic distinction, rather than reflecting reality. Amongst photographs used in promotional material for the 2019 property sale, contained in Mr Cruwy's Exhibit "PHC-1", and in Mr Ainsworth's Exhibit "EJA-1", the primary kitchen displayed is on the first floor near visible upper canopies of 2 of the Leyland Cypress trees amongst T7 - T9.
The previous ground floor plan in the application showed a living area at the western end and a narrow kitchen, oriented north-south, which gained sunlight through W5. W4, the window in the applicant's current kitchen that is most under contention in terms of sunlight and view obstruction, was formerly a bedroom window facing the lower canopy of established Leyland Cypress trees.
Mr Jayne, at par 67 of his Written Submissions, said; "The fact that the main kitchen was relocated downstairs has been at the election of the Applicant. It cannot be reasonable to now expect the removal of existing vegetation just to facilitate an increase in a view from this internal reconfiguration. That is not fair, equitable or just. Once again, the starting point is the position in 2019."

[12]

Is the obstruction of sunlight severe?

For assessment of severity of obstruction of sunlight, the applicant nominated eight north facing windows. Windows, W2 - W5, are on the ground floor, while W11 - W14 are first floor windows. On each floor, the window numbering sequence is from east to west.
At question 4 of Exhibit C, the applicant provided commentary on the obstruction of each window and referenced shadow diagrams by Mr Doring (Exhibit E) and 'Expert Urban Planning Opinion' (including shadow diagrams) by Mr O'Grady (Exhibit F). Mr O'Grady adopted different window numbering to the applicant, so I have adjusted Mr O'Grady's numbering to provide consistency with Ms Barstow's application. In his supplementary letter of 16 April 2023, Mr O'Grady noted that after recently reviewing the Doring Design shadow diagrams, his opinions provided in Exhibit F had not altered.
The applicant submitted that sunlight to W2 and W3 in an east end living area was obstructed by T11 - T18 from sunrise to sunset and that sunlight to kitchen/ living area through W4 was fully restricted by T8 and T9 covering "100% of the window opening well above the top of the window". Sunlight to W5, a second kitchen window, was claimed by the applicant to be obstructed by T8 from sunrise until 11am and by T9 from midday to sunset. For the first floor, Ms Barstow claimed that T8 - T19 obstructed sunlight from sunrise to sunset through rumpus room windows, W11 and W12, walk-in wardrobe window, W13, and ensuite window, W14.
For his analysis of 'Current and Potential impacts on access to natural light', at 6.2 of Exhibit F, Mr O'Grady included areas that satisfied the definition of "Habitable room" from the Lake Macquarie Development Control Plan 2014 (DCP). He thus determined windows which are "critical to natural light access", are the ground floor kitchen and western living area, the first-floor rumpus room/ home office, and the master bedroom.
In applying the "Habitable room" criteria, Mr O'Grady excluded W13 and W14, the wardrobe and bathroom windows on the first floor, and W2 and W3, which were small, elevated east end windows for which sunlight or views was not prioritised by Ms Barstow. Now called a "living room" on the floor plan, the room housing W2 and W3 had formally contained a sauna and spa. Improved sunlight and views were pursued for W13 and W14, notwithstanding that Ms Reid, the applicant's barrister, acknowledged that light and views for bathroom and wardrobe windows are usually ranked relatively unimportant.
Based on the shadow diagrams at 9am, noon and 3pm on 21 June, Mr O'Grady said that sunlight to W4 was currently entirely obstructed by "the Tree Group" between 9am - 3pm, but sunlight to W5 was only obstructed prior to about 10am. Having also noted that sunlight to W6, a large picture window at the western end of the dwelling, was unobstructed at any time during the day, Mr O'Grady concluded: "that the Tree Group would allow for three hours of sunlight between 9am and 3pm on June 21, to at least 50% of the lower level kitchen and living areas and that the impacts on access to natural light to this part of the house at current (tree) heights would be consistent with the DCP control." He assessed the trees' impact on natural light as minor to moderate.
With respect to rumpus room windows, W11 and W12, Mr O'Grady said that, at current tree heights: "The Tree Group only partially obscures light to the north facing windows to this room and does not impact on light access to the east facing windows. Light would be available to greater than 50% of the room between 9am and 3pm on 21st June. The impact of the Tree Group on solar access to the upper-level rumpus room and home office is thus consistent with the Lake Macquarie DCP under current conditions and is considered to be minor."
Mr O'Grady also evaluated future sunlight obstruction based on the trees' heights at maturity, as estimated by Mr Watson. He concluded that sunlight to all assessed windows would be heavily obstructed and, "the level of solar access to these rooms would be severe". This conclusion also extended to the applicant's master bedroom, and the rear deck.
My determinations were similar to Mr O'Grady's. I was satisfied that sunlight to kitchen window, W4, was severely obstructed by T8 and T9, but that the sunlight obstruction of W5 was moderate rather than severe due to sunlight penetration through a relatively large gap between T7 and T8. Sunlight obstruction of W12 in the rumpus room was moderate - severe, but because the rumpus room received ample light through large east facing windows, and some from the north filtering through the foliage of the Lilly Pilly's adjacent to W11 and W12, the impact of sunlight obstruction in the rumpus room was moderate, at worst. Though Mr O'Grady excluded assessment of the wardrobe and bathroom windows on the first floor, W13 and W14, they were important to the applicant, and Leyland Cypress obstructed their sunlight to a minor-moderate extent.
Due to the severe obstruction of sunlight to W4, s14E(2)(a)(i) of the Trees Act was engaged.

[13]

Is the obstruction of views severe?

At question 9 of Exhibit C, Ms Barstow nominated, and commentated on 10 viewing locations for assessment of obstruction of views from her dwelling. Views 0 - 6 (V0 - V6) were on the ground floor and V7 - V9 were on the first floor. On each floor, the numbering of views ran from west to east.
V0 was from the west end deck, where the applicant claimed that T1 - T5 were covering about 20% of the view from a seated position. V1 was from the lounge on the southern side of the western end of the dwelling, where the applicant claimed that T6, growing north-east of V1 directly outside W6, was currently covering approximately 10% of the view from V1 and that that T1 - T5 also obstructed water views towards the north and north-west from V1.
Ms Barstow expected T6 to "obstruct 100% of the view and sunlight into W5 within the next 7-10 years". From my understanding, W5 in this quote appeared to be a typographical error that should have instead referenced W6, as T6 is distant from and barely impacted W5. This mismatch of viewing locations and windows continued for the remainder of the applicant's submission at question 9 of Exhibit C, so I adjusted the numbering accordingly.
The applicant claimed an 80% view obstruction to V3, through kitchen window, W5, consequent of T7, and that V4, through kitchen window, W4, was 100% restricted by T8 - T10. V5 and V6, gained through living room windows, W2 and W3 respectively, at the dwelling's eastern end, were claimed to be 100% restricted by T11 - T18. The applicant's submission for first floor views was an 80% restriction of views from bathroom window, V7, caused by T8 and T9, a 60% restriction by T9 from the walk-in wardrobe window, V8, and that V9 in the rumpus room was 100% restricted through both W11 and W12 by T11 - T18.
The applicant's dwelling provides for whole views over Lake Macquarie and its vegetated foreshores across a wide panorama from east of north around to south of west. In Exhibit F, Mr O'Grady noted the main viewing locations as the western deck (V0), the western ground level living area (V1 and V2) and the upper-level master bedroom and balcony. He included photographs 7-17 to display these expansive views, 3 of which contained view obstruction by trees. Photograph 10, apparently taken from low on the western deck, about 2.4 m below ground floor level, showed views of neighbouring houses along the northern foreshore obstructed on the eastern side by foliage from the T6 - T9 group, which also provided privacy screening for the applicant.
Photograph 15 showed the same northern aspect with full water and jetty views, from V2, close to tall picture window, W6, from where the upper crown of T6 slightly obstructed the near view and restricted oversight of a portion of the respondents' back yard and pergola. The gap between T6 and T7 exposed views of houses along the eastern foreshore while T7 provided a dense screen preventing oversight of the respondents' rear deck. Photograph 14 showed the north-west aspect, where the upper canopy of T6 provided some privacy screening to the respondents' pergola but restricted the applicant's water and land-water interface views by about 5%. Both photographs 14 and 15 were apparently taken from just above the window's bottom sill, about 450 mm above floor level, which was not representative of a usual seated or standing viewing position.
In Mr O'Grady's opinion, "these existing views from the subject property are not dramatically impacted by the vegetation screen at its current height and spread". When considering mature dimensions of T1 - T5 as up to 25 m tall and 10 m wide, however, Mr O'Grady determined that the northern views would be completely obstructed from the ground floor and deck locations if T1 - T5 grew to 7 m tall, and from the master bedroom window and deck if T1 - T5 reached 10 m.
Mr O'Grady noted that view controls in the DCP applied to built development rather than vegetation, but he assessed the severity of obstruction of views with consideration of the planning principles on view sharing established in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), from which the Court also takes guidance. At [26] - [28], Tenacity states: "[26] 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, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. [27] 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…." [28] The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating."
Considering the first step of Tenacity, the applicant's whole views of water and land/ water interfaces are highly valued. At Tenacity's second step, Mr O'Grady claimed that protection of north and north-west views from V0 - V2 and the applicant's master bedroom across the side boundary is "less difficult than in usual circumstances", because views are usually constrained by the close proximity of adjacent neighbour's dwellings, but building development here was restricted by a 10 m wide Foreshore Area. Mr O'Grady claimed that because the inherent high value of the view would be significantly reduced if part of the full arc of the 'whole' view is obstructed, the relative ease of preventing future tree growth obstructing views across the boundary (compared to a building), provided a strong imperative for the Court to make such orders.
I determined that view obstruction from V0, V1, and V2 was negligible. From V3, obstruction was minor to moderate because views were available on both sides of T7, while V4 was severely obstructed by T8 and T9. V5 and V6, through small, high, living room windows, were not prioritised but they were likely to be moderately or severely obstructed by Lilly Pilly trees, and V5 was also obstructed by the canopy of the Frangipani tree. On the first floor, view obstruction from the master bedroom and adjacent balcony was negligible, from V7 was moderate, and from V8, the view obstruction was minor - moderate.
In Haindl v Daisch [2011] NSWLEC 1145 (Haindl), at [64], assessment of severity of view obstruction was contextualised, as follows: "It is clear, to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. On the other hand, if the outlook is from an upper, living area level of the building across a 180 degree generally uninterrupted vista of coastline, even a modestly significant interruption of part of that view caused by trees on an adjoining property might not constitute, in an overall context, a severe obstruction to that view."
For assessment of obstruction of V9, I have considered this contextualised approach from [64] of Haindl, and the third step of Tenacity, where assessment of "the extent of the impact …should be done for the whole of the property, not just for the view that is affected".
Outstanding panoramic water views are largely unobstructed from V0 - V2, the dwelling's primary living areas, and from the master bedroom. V9 is considered a lower value viewing location than a living area, as the rumpus room is arranged as a play area akin to a child's bedroom, and children usually value and focus on views less than adults. Considering Mr O'Grady's analysis, at [100], even if T11 - T18 were absent, the restriction of the potential breadth of V9's arc by the Frangipani, the Leyland Cypress, and the rumpus room's east-end location, caused V9 to inherently have less value than V0 - V2.
Therefore, though V9 was heavily obstructed by Lilly Pilly's, I am satisfied that these reasons render the obstruction of V9 less than severe. Nonetheless, the severe obstruction of V4 satisfies the jurisdiction, such that s14E(2)(a)(ii) of the Trees Act was engaged.

[15]

Relevant considerations under s 14 F of the Trees Act

The hedge, located close to the common boundary, ascended the slope with the lay of the land. There were relatively large gaps either side of T6, and T6 - T18 were growing near the applicant's dwelling. T10 is not a member of the hedge (s 14F(a)).
The construction of the applicant's dwelling preceded the planting of the hedge (s 14F(b)), but the applicant's purchase and initial occupation was in June 2019. The hedge trees had grown above a height of 2.5 m before the applicant's occupation, after which long established Leyland Cypress trees were removed from the hedge's western end and replaced by T1 - T5 in or around December 2019 (s 14F(c)).
I accept Mr Jayne's claim, at par 54 of his Written Submission, that "the jurisdiction of Pt 2A of the Trees Act was never intended to provide access to sunlight or a view not previously available to the applicant". This has been consistently applied by the Court and has its origins in Recommendation 9 of the "Review of the Trees (Disputes Between Neighbours) Act 2006 " (the Review), undertaken by the NSW Department of Justice and Attorney General and published in November 2009. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review.
Discussing the Review at [23] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), Fakes C says, "The discussion relating to Recommendation 9 [page 35] states, in part, that: The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase."
At [25] of McDougall, the Commissioner added; "…The making of orders to substantially increase the view from the applicant's dwelling would be counter to the intent of the amended Act and would create an undesirable precedent and unreasonable expectations of future applicants…". Consequently, orders that are contemplated in such circumstances are usually limited in extent to intervention with vegetation on the respondents' land that established after the applicant's property purchase or occupation. This limitation, however, does not impose any requirement on the Court to necessarily make orders to redeem views and/or sunlight available upon the applicant's occupation. Other contextualised elements are considered, such as the following from Recommendation 9 of the Review (at [22] of McDougall): "… c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. …"
Based on Exhibit H, there are no vegetation controls under the Environmental Planning and Assessment Act 1979 imposed by Council for tree removal or pruning (s 14F(d)), nor any other development consent requirements or conditions relating to either parties' property (s 14F(e)).
The trees make a moderate contribution to the local ecosystem and biodiversity. Mr Ainsworth, at par 28 of his affidavit, said the trees provide habitat for birdlife and marsupials, and he reported having observed "possums, doves, native minors, ravens, kookaburras, magpies, eastern rosellas, and spiders and lizards within the trees and hedges". Though the species at issue are not endemic, the Lilly Pilly's are native, and their flowers and fruit are likely to periodically provide a food source for native birds. Dense conifers like Leyland Cypress often provide protective habitat for possums (s 14F(g)).
The trees contribute to the scenic value of the land on which they are situated, particularly when viewed from the water (s 14F(h)).
The web of tree roots in the respondents' sloping garden beds is likely to enhance soil stability (s 14F(j)).
The detrimental impact of the applicant's proposed pruning is considered above at [40] - [42]. T6 - T9 and T11 - T23 are likely to tolerate annual light pruning, and T1 - T5 are likely to tolerate moderately harsh formative pruning, particularly if supplementary water is provided during harsh, dry summers (s 14F(k)).
Privacy, an important consideration influencing garden design, was reduced around the respondents' west-end pergola by the 2019 removal of established trees from the current location of T1 - T5. Considering both parties' photographs, T6 - T9 also appeared to provide privacy for the applicant. T19 - T23 protected the respondents from winds, particularly 'southerlies', and the hedge reduced light spill impact, muffled noise, and contributed to landscaping and site aesthetics by softening the imposing appearance of the applicant's north facing wall (s 14F(l)).
Entry of light through W4 and W5 is constrained by the unusually small size of the kitchen windows, which exacerbate the impact of the hedge's sunlight obstruction. Except for the period in winter and early spring when its leaves are absent, the Frangipani also obstructs sunlight and views, though its impact is only minor-moderate (s 14F(m)).
With respect to efforts by either party to rectify sunlight or view obstructions, the respondents' removed trees from the west end of their garden on 16 September 2019, which were replaced with T1 - T5, during or soon after December 2019. Though detail regarding these trees was contested in "EJA-1" and "PHC-1", the issues in contention were not determinative to the parties' dispute. Mr Ainsworth, at page 79 of "EJA-1", advised Mr Cruwys that the tree removals included "three 10 - 12 m high, dense pine trees directly blocking views and sunlight etc from your boatshed, lower and upper corner windows, and the dining room window". Various photographs in both parties' submissions displayed that these large trees, albeit Leyland Cypresses rather than 'pine trees', were in situ prior to the applicant's purchase, and this was uncontested by the applicant. Mr Ainsworth added that two 14-year-old 'pine trees' were removed, "giving you large gaps between the remaining trees to enhance views and natural light on the North wall". These "remaining trees" were almost certainly T6 - T9. In February 2021, the respondents also pruned the back of their hedge trees to remove branches overhanging the common boundary, thus providing "extra vertical sunlight" (s 14F(n)).
The loss of sunlight is most pronounced in winter when the sun's arc passes across the northern sky. The quantum of loss varied greatly across the dwelling's nominated locations, as displayed in my assessment of obstruction severity at [90]. During autumn and spring, sunlight availability would increase markedly down the tunnel behind the hedge, and this may account for the applicant installing a broad solid screen above W12 in the rumpus room. Sunlight obstruction is most pronounced in the kitchen, through W4 (s 14F(o) and (s 14F(r)).
The Leyland Cypress and Lilly Pilly's are evergreen while the Frangipani tree is deciduous (s 14F(p)).
The view obstruction is greater at the dwelling's eastern end, with V4 through W4 in the kitchen and the first-floor rumpus room heavily impacted. The plans showed the bottom half of the small high windows, W2 and W3, in the east end living room were obstructed by the top of the metal panel boundary fence as well as the hedge. Views obstruction from the upstairs ensuite, V8, was moderate and was minor-moderate from V7, the adjacent walk-in wardrobe. V0, V1 and V2 from the west end terraced deck and adjacent living area were outstanding, panoramic whole water and land-water interface views, as were views from the master bedroom and balcony above (s 14F(q)) and (s 14F(r)).
As noted in Tooth v McCombie [2011] NSWLEC 1004 (Tooth), at [14]-[15], though s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word "are" in s 14E(2)(a), requires the trees the subject of the application to be severely obstructing sunlight to a window of a dwelling or of views from a dwelling at the time of the hearing, notwithstanding that sunlight obstruction at the winter solstice may be considered in the assessment. Orders, therefore, may not be based on speculative future severe obstructions (s 14 F(s)).

[16]

Conclusion

From my site inspection and the adduced evidence, I have reached the following conclusions.
For the application under Pt 2 of the Trees Act, which proposed tree removal based on wall damage resulting from tree root incursion, minor wall cracks had not caused consequential damage to the long-established wall's performance. Severance of exposed roots on both sides of the wall is likely to arrest new root establishment and thickening of existing invasive roots, and thus render damage in the near future to be unlikely. The trees considered most likely responsible for the wall damage have been long-established, and perform important roles for the respondents, providing privacy and enhancing the aesthetics of their landscape. Upon balancing easily mitigated minor damage against the trees' significant benefits, removal of these trees is neither necessary, nor reasonable. Therefore, the application under Pt 2 of the Trees Act was refused.
Under Pt 2A, the applicant proposed heavy pruning to reduce hedge height to the approximate level of the common boundary fence, based on claims of severely obstructed sunlight to windows, and severely obstructed views. Frangipani, T10, was determined to not be a member of the hedge. Lilly Pilly trees, T19 - T23, growing east of the applicant's dwelling, were not impacting the applicant's sunlight or views, but were particularly important for the respondents' privacy and wind protection, such that no pruning of these trees was appropriate.
Based on the Review, the presence of large Leyland Cypress in place of T1 - T5 upon the applicant's occupation, precludes orders being made for T1 - T5, unless and until the severity of obstruction of views or sunlight caused by T1 - T5 exceeded that caused by their predecessors. Therefore, the Court has no power to make orders for intervention with T1 - T5.
Leyland Cypress often precipitate problems between neighbours because of their height, bulk, foliage density, and rapid growth rate. It is thus not a species commonly grown in waterfront locations where views are at a premium, but it has many attributes, an important one being tolerance of harsh conditions. As is reasonable, the applicant and Mr O'Grady based future tree size and growth rate expectations on the arborist's advice, but this caused unnecessary trepidation, as these estimates were not qualified with the site's soil volume, water, and wind exposure constraints, and were thus overstated.
The arborist's estimates of mature tree size, taken from an English commercial website, would probably be based on typical English conditions of relatively mild temperatures, regular, plentiful rainfall, and high-quality soil of sufficient volume to provide for active growth. Here, however, the conditions are sub-optimal. Contrary to the arborist's opinion, the soil is not of high quality and conducive for growth, but is sand based, hydrophobic, and relatively infertile. The trees that preceded T1 - T5 were said to have been about 12 m tall when they were removed at maturity. Based on photographs, it appeared that this group of three Cypress trees also had a cumulative canopy spread of about 8 m, far less than the 10 m spread anticipated by the arborist for each tree. T6 - T9 had limited available soil volume and water to support root growth, such that T6 had reached only about 3 m tall after 12 years in situ. Effectively T6 was being bonsaied, and the same is likely for T1 - T5, as roots of T1 - T6 face the additional constraint of competition for soil space amongst their predecessors' established roots.
As Mr Ainsworth noted, three consecutive La Nina cycles from 2020 to 2022, which was not unprecedented but was extraordinary, delivered rainfall quantities far higher than average. As tree growth rates were similarly above average across these years comprising most of the applicant's occupation, they provided an unreliable base line for prediction of future growth rates in anticipation of increased view and sunlight obstruction.
Considering Tooth, at [14]-[15], assessment of light or views is based on the severity of obstruction at the time of the hearing, not on potential future obstruction. Mr O'Grady reported available sunlight in the kitchen and integrated west end living area as satisfactory when assessed against DCP criteria, but the applicant's light intensity assessment with a Lux meter produced unacceptably low readings, particularly at the kitchen's eastern end.
Based on the Review, and [25] of McDougall, because T6 - T9 were currently causing a similar obstruction of sunlight as at the applicant's 2019 occupation, Orders under Pt 2A of the Trees Act are limited to maintenance of, but not improvement on views or sunlight access then available. Where obstruction impacts of T7 - T9 on W4 and W5 were similar in 2019 to the current situation, any intervention disadvantaging the respondents is unreasonable. However, a careful one-off pruning may be ordered for removal of dead branches that dominate the applicant's outlook on the south side of T7 - T9, as it would cause no disadvantage to the respondents, provided it is undertaken at the applicant's expense. This pruning is likely to allow more filtered light through to the applicant's kitchen and reduce the sense of enclosure caused by the trees.
Live Cypress foliage only persists where sunlight impacts the tips of branches, so it is easy to mistake dead branches with live. To minimise the risk of unattractive holes in the canopy resulting from live branches being accidentally removed, all branches must be assessed prior to removal, and shaken for clarification where there is any uncertainty. This work thus requires the skills of a patient experienced climbing arborist.
Considering Tenacity's third step, views prioritised by the applicant and Mr O'Grady were largely unobstructed from the master bedroom and from all nominated living areas, largely due to the 2019 removal of the respondents' waterfront Cypress trees, which T1 - T5 replaced.
Hedge obstruction of light to and views from W13 and W14 can be rectified, regardless that both the ensuite and wardrobe are assigned low significance in Tenacity, because the pruning to do so will not unduly compromise tree health, nor the respondents' privacy. The applicant will also gain increased vertical light penetration to W4 and W5 from pruning the height of T7 - T9, and their branches which overhang the common boundary.
Conversely, because obstruction rectification of V9 can only occur at significant cost to the respondents' privacy, this obstruction shall not be rectified. Considering the outstanding views that are available across the whole of the property and the reduced view ranking of V9, however, the impact of the loss of V9 is far from severe.
Although the nature and current severity of obstruction of both sunlight and views is relatively insignificant when availability of both is considered across the whole dwelling, the applicant's interest in having obstructions removed, remedied, or restrained can largely be satisfied by orders for pruning that do not jeopardise tree health or the respondents' privacy. The applicant's proposed orders do not provide for such an outcome, but orders for ongoing tree maintenance, modified from the respondents' proposed orders, should reduce the applicant's apprehension of future sunlight or view obstruction by hedge trees, other than T1 - T5. As future tree growth will likely be slower than previously anticipated, view loss may incrementally increase, but is likely to remain minor for many years.

[17]

Orders

The orders of the Court are: 1. The application under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) is refused. 2. The application under Pt 2A of the Trees Act is granted, to the following extent. 3. Within 45 days of the date of these orders, the respondents, at their expense, shall: 1. prune the height of T6 by a maximum of 1.25 m; and 2. prune T7 - T9 inclusive, to reduce their height to 1.4 m above the height of the applicant's first floor (at W13 and W14); and 3. prune T11 - T18 inclusive, to reduce their height to 1.6 m above the height of the applicant's first floor (at W12); and 4. prune all foliage from T6 - T18 inclusive, except for T10, that is overhanging the common boundary into the applicant's property. 1. Within 90 days of the date of these orders, the respondents, at the applicant's expense, shall prune dead branches from the internal canopy of T7 - T9. To enable this pruning, the respondents shall procure and email the applicant a quote within 45 days, based on T7 - T9 being accessed from the applicant's side where live foliage is absent, and on a requirement that the pruning must be completed with sufficient care and caution to ensure that no live foliage or live branches are removed. Within 7 days of receipt of the respondents' emailed quotation, the applicant shall email the respondents a confirmation of acceptance of the quotation, and that payment of the cost of pruning works shall be made to the respondents by EFT within 72 hours of receipt of a copy of a paid invoice from the respondents. If the applicant fails to confirm acceptance of the quotation and the payment conditions for the pruning in Order 4 within the designated 7-day period, Order 4 shall lapse. 2. During May of 2024, and during May of each subsequent year, the respondents, at their expense, shall: 1. prune the height of T6 by a maximum of 1.00 m, but to no lower than pruning of T6 in Order 3; and 2. prune T7 - T9 inclusive, to reduce their height to 1.4 m above the height of the applicant's first floor (at W13 and W14); and 3. prune T11 - T18 inclusive, to reduce their height to 1.6 m above the height of the applicant's first floor (at W12); and 4. prune all foliage from T6 - T18 inclusive, except for T10, that is overhanging the common boundary into the applicant's property. 1. The work in Orders (3), (4), and (5) shall be carried out by arborists with AQF level 3 qualifications and appropriate insurances and the work shall comply with AS4373:2007 Pruning of amenity trees, and Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 2. The respondents are to provide the applicant 7 days' emailed notice of the date and approximate start time for work in Orders (3), (4), and (5). 3. The applicant shall provide the respondents, or the respondents' contractors with appropriate insurance, all required access; for the purpose of organising quotes for all or any of the works, for the purpose of clarifying and marking pruning heights based on the applicant's upper floor level, and for the purpose of undertaking pruning and tidying the site. 4. All works shall be completed at reasonable daytime working hours.

Barstow v Ainsworth

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Cases Cited (11)

Cited By (4)