Brown v Beirne

Land and Environment Court (NSW)|2021-04-13

Background to the application

Approximately 11 years ago, Katherine Brown ('the applicant') obtained development consent at her Mosman property to construct a street-level garage with a garden-level studio beneath it. The studio has a single large window, facing roughly east. In 2016, her neighbours to the north, Jo-Anne Beirne and Gregory Beirne ('the respondents'), planted a row of five weeping lilly pillies ('the trees') on their property. They have grown to more than five metres tall and cast shade on Ms Brown's studio window. Ms Brown has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the trees to be pruned or removed to restore sunlight to her studio window.
Since receiving a copy of the application, the Beirnes have carried out some pruning of the trees. Ms Brown found this provided no relief, but amended her application and the orders she sought. She wishes the trees to be pruned to 30-50 cm above boundary fence height. The Beirnes refuted that their trees severely obstruct sunlight to Ms Brown's dwelling, but in the event that the Court finds otherwise, they proposed alternative orders for removing the westernmost tree in the row.

Framework for this decision

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

The hearing

The hearing took place onsite, allowing for observations of the trees, gardens and issues of privacy and amenity. Shadow diagrams and reports from Cameron McFadzean of Deneb Design ('McFadzean') (for the applicant) and Mark Davison of Munro Davison ('Davison') (for the respondents) were filed and greatly assisted the Court. These experts were not required at the hearing.

The applicant made reasonable effort

Correspondence filed with the Court demonstrates that Ms Brown alerted the Beirnes to her issue with the trees' sunlight obstruction and asked them to take some action to remedy the situation. She explained the problem clearly, and suggested possible solutions. Before receiving Ms Brown's application, the Beirnes were reluctant to take any action, only pruning the hedge after Ms Brown filed her application. I am satisfied that Ms Brown made reasonable effort to reach some agreement with the Beirnes.

The trees form a hedge

Five Syzygium floribunda (Weeping Lilly Pillies) are planted in a straight line at close and regular spacings, close to, and parallel with, the parties' common boundary. Three of these trees were planted during March 2016, with two more planted in May 2016. Despite their separate planting dates, at each planting the intention was either to establish a hedge or extend the existing hedge. The trees' crowns meet, forming a continuous screen of foliage. They are more than 2.5 metres tall. The trees form a hedge to which Pt 2A of the Trees Act applies.

The trees severely obstruct sunlight to the studio window

The shadow diagrams of McFadzean and Davison are remarkably similar when it comes to the extent of shadowing caused by the trees. Their principal point of difference is that McFadzean shows shadow from a glass screen atop the boundary wall, whereas Davison assumes sunlight passes through this glass screen. Photos filed by Ms Brown clearly show the shadow cast by this opaque (or at most, semi-transparent) screen. In my mind it is reasonable to include the screen's shadow when assessing the impacts of the trees on the sunlight obstruction to Ms Brown's studio windows. Ms Brown was content to otherwise rely on shadow diagrams in Davison's report during her submissions.
Shadow diagrams in McFadzean's report show the current situation (at various times of the day at the winter solstice and at the equinox) and the likely situation if the trees were pruned to 30-50 cm above the top of the boundary fence, as proposed by Ms Brown. Davison's diagrams show the current situation and, for comparison, the situation if there were no trees. Davison also included diagrams for the likely impacts if the westernmost tree were removed, as proposed in the respondents' alternative orders.
During winter, regardless of the trees, sunlight would only be available to the studio window in the morning, up to approximately 11:00 am, due to the aspect of the window. Davison's diagrams (Exhibit 4) show that trees obstruct sunlight to the studio window completely at 8:00 am, almost completely at 8:30 am, to more than half the window area at 9:00 am, and to 10-20% of window area at 9:30 am.
At the equinox, trees obstruct most of the window at 8:00 am, more than half at 8:30 am and 9:00 am, slightly less than half at 9:30 am.
The trees have little or no impact during summer.
Ms Walker argued that 8:00 am is outside the usual development control plan guidelines for considering overshadowing impacts, so sunlight obstruction at that time should not be considered. Such guidelines may assist the Court when assessing sunlight obstruction, but the Trees Act provides a broader framework for making this assessment: see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462 at [38]-[40]. I find that sunlight is only available to this window for a limited time (including 8:00 am) and trees in the hedge obstruct sunlight during much of that time in winter and at the equinox.
While Ms Brown had no issue with Davison's diagrams (other than impacts of the glass screen), she thought Davison's interpretation of the diagrams understated the impacts, with conclusions that were not explained. I also find this to be the case. In the 12 March report, Davison stated (page 8) that the equinox diagrams demonstrate that the window only loses sunlight due to tree shadow for 50 minutes, or 20% of the 4 hours (7:30-11:30 am) of available sunlight on that date. The diagrams in that report, however, show more than 50% of the window is shaded by the trees at 8:00 am (first diagram for the day), so it appears that even at 7:45 am a significant portion of the window would be shaded by the trees. Further diagrams report show >50% shading by trees at 8:30 am and 9:00 am, ~50% at 9:30 am, and shadows just at the lower windowsill at 10:00 am, so still on the window at 9:45 am. That is, the trees cast shadow onto the window for at least two hours at the equinox (7:45-9:45 am), with 50% or more of the window shaded for much of that time.
Considering the number of hours of available sunlight to the window, and the impact of the trees during that time throughout much of the year, I find the obstruction is severe, being more than moderate but less than devastating.

Relevant matters at s 14F

The trees were planted close to the boundary. They have grown up to obstruct sunlight that otherwise reached the window of Ms Brown's studio.
Ms Walker presented reasons to avoid interfering with the trees. A council permit for pruning the trees included a condition that they not be topped. Reducing the trees' height by topping would affect their health, their life expectancies and the amenity they provide. I find that reducing the trees' height, especially to the extent suggested by Ms Brown, would adversely affect the trees and should be avoided.
The Beirnes have a similar hedge on the north side of their garden. They argued that pruning or removing the trees would impact the symmetry of their garden design. In my mind, the element of symmetry is not significant enough to the garden design to prevent interfering with the trees.
Ms Walker explained the importance of the trees for the Beirnes' privacy. On the upper level of their dwelling, the Beirnes' dressing room faces west across their garden. It might be possible for someone in Ms Brown's property, or in the apartments further west, to see into the dressing room. I observed that the rooms' windows are relatively small, with blinds that can be closed electronically. Apartments to the west are uphill and across a road, a significant distance from the Beirnes' dwelling. A sightline from Ms Brown's lower garden or studio would be upward through the small windows to the room's ceiling. This is not a living room or an area for spending extensive time. Ms Brown pointed out that she is not bothered by any overlooking from the Beirnes' windows into her property. The trees provide some limited visual screening for these windows, but the issue of privacy here seems relatively minor, such that it would not prevent orders to interfere with the trees.
Privacy and amenity do not outweigh the trees' impacts to Ms Browns' sunlight access, nor do any other matters at s 14F of the Trees Act, so it is appropriate to make orders to remedy the sunlight obstruction.

Impacts of pruning

Pruning to reduce the trees' height 30-50 cm above the boundary fence would leave bare stems. If that course of action were necessary, it would be preferable to remove the trees and replace them. The Beirnes have pointed out that only the trees at the western end of their hedge obstruct sunlight to the window, as shown in shadow diagrams. Davison has shown the likely shading impacts remaining if the westernmost tree were removed, removing most of the shading to the window caused by trees. The Beirnes have offered to remove the westernmost tree. This scenario would maintain the privacy benefits provided by the trees further east in the hedge, closer to their dwelling.
This solution seems preferable to severely pruning the trees, but I find that the adjacent tree (second tree from the hedge's western end) is likely to grow into the space created by the removal of its neighbour, such that the impacts would quickly be similar to the present situation. For ongoing prevention of sunlight obstruction, two trees should be removed. Sunlight to Ms Brown's open space will still be obstructed, but the Trees Act does not provide a mechanism to deal with this.
I note that the Beirnes expressed a commitment to pruning back to the boundary any branches that extend above Ms Brown's property, and maintaining the trees so that branches do not extend beyond the boundary, if the overhang were to bother Ms Brown. It was clear during the hearing that the overhang bothers Ms Brown. Shading from those branches will impact Ms Brown's garden, not her studio (once two trees are removed). Therefore, no orders will be made to prune the remaining trees, but the Court notes the Beirnes' expressed commitment to prune them.

Orders

For the reasons set out above, the Court orders: 1. The application is granted, to the extent of the orders below. 2. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the two trees at the western end of the hedge near their southern boundary. The works are to be done in accordance with the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. 3. If a new hedge is established near the respondents' southern boundary, or if the existing hedge is extended again, trees used must be of a species that does not grow beyond 2.5 metres in height, or trees must be maintained below 2.5 metres in height. 4. The exhibits are returned, except for Exhibits A, B, F, G, 1 and 2.

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: 09 July 2021

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Judgment (10 paragraphs)

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