Boyd v Cinelli

The trees

1. The respondents have planted screening hedges along most of the boundaries around their property. The trees are in several hedges, planted in separate planter boxes or beds.
2. In the front setback of the respondents' property, next to the common boundary, is a row of five lilly pillies (trees 1-5) in planter box 1. The trees reach a height of approximately 1.5 metres above the soil level in the planter box.
3. Alongside their dwelling, and extending into their back garden, is a row of approximately 16 lilly pillies (trees 6-21 in the application) in two separate planter boxes: 2 and 3. These trees are up to 7 metres tall.
4. Continuing along the common boundary toward the rear boundary is a row of approximately 16 viburnum (trees 22-37 in the application) in a garden bed. These trees are up to 6 metres tall.
5. Further hedges of viburnum continue along the respondents' rear boundary and along their other side boundary on the opposite side of their garden. At the onsite hearing, the applicants explained that they wanted these trees pruned also, although they were not in their application. While these trees are on land adjoining the applicants' land, so that the Court's jurisdiction might extend to these trees, the Court cannot make orders for trees that are not included in the application. This would effectively 'ambush' the respondents, who did not prepare a response relating to these trees.

Framework of Pt 2

1. The Court may only make orders under Pt 2 of the Trees Act if satisfied, relevantly here, that the subject trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property (s 10(2)(a) of the Trees Act). Then, before making orders, the Court must consider the matters at s 12 of the Trees Act.
2. The Pt 2 application relates to the lilly pillies (trees 6-21) and the two planter boxes (2 and 3) in which they grow.

Relevant issues

1. The applicants say the planter boxes are not constructed as specified in the respondents' development consent, which required construction using 100 mm timber sleepers. I observed that the timber construction is less than 100 mm thick. I asked the applicants to show me where the respondents' development consent required 100 mm timber sleepers. There were unable to show me this, although they had the consent conditions and approved landscape plans at the hearing. They were given several opportunities to demonstrate this point, as they returned to it repeatedly. The Court's jurisdiction under Pt 2 of the Trees Act does not extend to orders for enforcing development consent conditions. Orders can only be made, at s 9 of the Trees Act, 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. The applicants stated that timber in one planter box is bulging toward the adjacent boundary fence, indicating its imminent failure - it will damage the fence, they said. The respondents pointed out that the timber along the rear of the planter boxes is all perfectly straight, except for one section that is slightly out of alignment at a join. They say it was constructed like this, with the capping on top of the timber exaggerating the effect of any misalignment. They pointed out that the planter boxes are clear of the adjacent boundary fence along their entire lengths. I observed this to be so.
3. The applicants argued that the trees are too big, with too many planted in the planter boxes, such that the timber of the planter box is likely to push out onto the boundary fence, which it will damage. I asked them several times to show me where it is likely that the trees will damage the fence in the near future, or within 12 months as per the principle established in Yang v Scerri [2007] NSWLEC 592 at [12]-[14]. Apart from repeating their general concerns that this would happen, they were not able to show me any damage, or anything indicating that damage is likely. They referred to root growth of lilly pillies and their effects on soil moisture. The nature of these submissions was general - there was nothing that demonstrated these trees are likely to cause damage.

No orders to be made for the Pt 2 application

1. The applicants want the respondents' planter boxes rebuilt and additional trees removed to prevent damage to their property. However, there is nothing in the Pt 2 application, or observed onsite, that would suggest trees are likely to damage the applicants' property in the near future. No orders can be made for the Pt 2 application.

Framework of Pt 2A

1. Part 2A of the Trees Act only applies to groups of two or more trees planted to form a hedge that rises to at least 2.5 metres in height (s 14A(1)).
2. Under Pt 2A, the Court may only make orders if the conditions at s 14E(2) of the Trees Act are met. The Court must be satisfied that the trees are severely obstructing a view from, or sunlight to a window of, the applicants' dwelling. The Court must also be satisfied that the severity and nature of the obstruction outweighs any reasons to avoid interfering with the trees. The Court must consider relevant matters at s 14F.
3. The Pt 2A application relates to all 37 trees in the four hedges. It is not disputed that the trees were planted to form hedges, and this was apparent from observations during the hearing. They are all planted in straight rows, at close and regular spacings, to form screens of foliage along the respondents' boundaries.

Hedge 1

1. Lilly pillies in hedge 1 (trees 1-5) grow in a planter box against the common boundary in the respondents' front setback. These trees reach a height of approximately 1.5 metres above the soil level in the planter box. Of course, the soil level in the planter box is higher than soil of the surrounding ground. Every situation is different, and in some cases the surrounding soil might best be considered 'ground level' for the purposes of s 14A(1) of the Trees Act, but here it seems more appropriate to regard the planter box's soil level as ground level. Firstly, this will result in the 'height' being the actual height of the trees, rather than tree height plus planter box height. Secondly, and perhaps more importantly, the height of trees specified in the respondents' approved landscape plans and development consent included consideration of the height of the planter box. For instance, to provide a screen to 2 metres in height required trees to be 1.5 metres tall in a 0.5-metre planter box.
2. Trees in hedge 1 were approximately 1.5 metres tall at the time of the hearing. They had been pruned, but the respondents said the trees had been no taller than an adjacent awning before they were pruned, so perhaps they were approximately 2 metres tall before being pruned. The applicants thought they were more like 2.5 metres tall, but had no photos to demonstrate this. I cannot be satisfied that the trees ever reached a height of 2.5 metres, so the Court's jurisdiction at s 14A(1) of the Trees Act does not extend to these trees and I can make no orders for them.
3. For completeness, I also observed any obstruction to sunlight and views the trees in hedge 1 might cause to the applicants' dwelling. The room they say is impacted by these trees is at the front of the house on the ground floor. It is used as a study. The trees are some distance from the room's window. Other features contribute significantly to sunlight and view obstruction: the overhang of the applicants' first floor and its supporting pillar. I found that the trees in hedge 1 did not severely obstruct views from, nor sunlight to, this room.

Hedges 2 and 3

1. Lilly pillies in hedges 2 and 3 (trees 6-21) are approximately 7 metres tall. Unlike trees in hedge 1, they have not been pruned.
2. The applicants submitted that the respondents planted an additional eight lilly pillies to the eight trees shown here on the approved landscape plan. They submitted that the additional trees increase the sunlight and view obstruction, and want those trees removed. I observed that the trees are planted in the area shown on the approved plan, but at closer spacings, resulting in more trees in the same area. Considering the growth habit of this species, I formed a view that the proposed planting of eight trees would have formed a dense screen within the same timeframe, such that there is unlikely to be any significant difference between the extent of screening provided by the existing planting compared with the approved planting proposal. Therefore I will not order the removal of any of the lilly pillies. If there is a severe view or sunlight obstruction, it is one that would now be best addressed by pruning all trees in these hedges.
3. The applicants submitted that trees in hedges 2 and 3 obstruct sunlight to their ground-floor dining room and living room, and views from windows on their first floor.
4. On their ground floor, the applicants' dining room windows W7-W9 and living room windows W13-W15 face southwest, and I cannot be satisfied that they receive any significant amount of direct sunlight. On the other hand, dining room windows W4-W6 and living room windows W10-W12 face northwest and potentially receive afternoon sun throughout much of the year. Trees in hedge 2 are close to windows W4-W6, obstructing all available sunlight, so that I am satisfied that the obstruction is severe. Sunlight to windows W10-W12 is also restricted by the overhang of the respondents' first floor, which covers a patio area outside their dining and living rooms. Nevertheless, trees in hedges 2 and 3 prevent any available sunlight reaching these windows, such that the obstruction is severe.
5. The view towards the southwest from windows on the upper level take in the broad suburban landscape of Gladesville, Putney and Tennyson Point. Trees in hedges 2 and 3 obstruct significant parts of the view, their dense screen taking away more than half the available horizon in places. I am satisfied that the view obstruction is severe.

Hedge 4

1. The viburnum trees in hedge 4 (trees 22-37 of the application) grow in a garden bed and are approximately 6 metres tall. They have not been pruned.
2. The applicants submitted that the respondents planted an additional nine viburnum trees to the seven trees shown on the approved landscape plan. Again, they submitted that these additional trees increase the sunlight and view obstruction, and want those trees removed. As with the lilly pillies, I formed a view that the proposed planting of seven trees would have formed a dense screen within the same timeframe, such that there is unlikely to be any significant difference between the extent of screening provided by these 16 viburnum trees compared with the approved planting proposal. I will not order the removal of any of the viburnum trees.
3. Trees in hedge 4 are to the southwest of the applicants' dwelling. They do not severely obstruct any sunlight to their windows.
4. Trees in hedge 4 contribute to the view obstruction from windows on the applicants' first floor. Although they are further from these windows than the lilly pillies in hedges 2 and 3, the trees in all three hedges appear as one hedge from these windows, and have the effect of one single hedge obstructing a significant portion of the applicants' outlook. As with the lilly pillies, the obstruction is severe.

Balancing relevant matters

1. Based on the findings above, orders might be made to remedy the obstruction of sunlight and views. Before making any orders, the Court must consider the matters at s 14D of the Trees Act. Relevant matters are discussed below.
2. Trees in hedges 2-4 are next to the common boundary, forming a tall dense screen along the boundary. As they are evergreen their screen persists throughout the year.
3. The trees are fast-growing, requiring regular maintenance if their size is to be controlled. It is not only the tops of trees that require pruning, but the 'faces' of the hedges also. The applicants submitted that the task of pruning foliage and branches that spread across their boundary is onerous.
4. The principal benefit of the trees to the respondents is the privacy they provide. The respondents submitted that they do not want the applicants looking into the back part of their dwelling or into their pool. Reducing the trees' height too severely would allow overlooking.
5. The trees also contribute amenity to the respondents' property, providing a green screen around their garden.
6. The applicants want trees in all these hedges reduced to 2 metres in height. The respondents, who said they are willing to prune the trees, suggested the following heights: 2 metres for hedge 2; and 3 metres for hedges 3 and 4. The trees in hedges 2-4 have not been pruned, so reducing their heights significantly might adversely impact their health and appearance. While this should be avoided if possible, I note that this situation results from an absence of any pruning on behalf of the respondents. As per my finding at [60] in White v Baird [2014] NSWLEC 1189, this is something that the respondents could have avoided by considering the impacts to their neighbours earlier.
7. The respondents' development consent specified screen plantings along this boundary to 2 metres tall. The respondents argued that this decision was rushed by the determining authority. Nevertheless, it was a condition of their consent, and relevantly so, in my mind. A 2-metre hedge would maintain much of their privacy, while preventing the issues now experienced by the applicants. Some overlooking might be possible, but preventing all overlooking in such a dense urban setting might be unreasonable. As a result, I will order that the trees in hedge 2, beginning at tree 6, are pruned to 2 metres above soil level in their planter box. Trees in hedges 3 and 4 are then to be pruned so that their tops are at the same level as trees in hedge 2.
8. The respondents submitted that they wish to avoid orders for repeated pruning to maintain their hedge. Ideally, such orders would not be necessary, however the respondents have demonstrated that they are disinclined to prune these hedges. Considering the state of relations between the applicants and respondents, I am not satisfied that the respondents would continue to act in the applicants' best interests, without orders from the Court. Orders will be made for annual pruning. Regrowth between pruning events will provide some further screening to the respondents for much of the year.
9. The applicants submitted that orders should also be included in any sale of contract for the respondents' property. There is nothing in s 14D of the Trees Act that would empower the Court to make such an order.

Orders

1. As a result of the foregoing, the Court orders that: 1. The Pt 2 application is refused. 2. The Pt 2A application is granted to the extent of the orders below. 3. Within 30 days of the date of these orders, and then in June of each year thereafter, the respondents are to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurances, to prune the trees in hedges 2, 3 and 4 (all trees along the common boundary shared with the applicants' property other than trees in their front setback) as follows: 1. Prune trees in hedge 2, being those that grow in planter box 2, beginning with tree 6 as shown in the diagram for question 2 of the Pt 2A Application Claim Details Form (Exhibit C) to a height of 2 metres above soil level in the planter box; 2. Prune trees in hedges 3 and 4 (being all other trees along this common boundary to the respondents' rear boundary) so that their tops are at the same level as trees in hedge 2 after pruning. 1. The pruning works are to be done in accordance with the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. 2. The respondents are to give the applicants at least 7 days' notice of each occurrence of the works at order (3). 3. The applicants are to allow any access necessary for each occurrence of the works at order (3) to be completed. 4. The exhibits are returned, except for Exhibits A, B and C.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 June 2021