Condon v QC Civil Pty Ltd

Land and Environment Court (NSW)|2022-10-26

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

Background

Ms Condon, (the Applicant), has lived at her St Ives property for 46 years. She shares a boundary with the Respondent, QC Civil Pty Ltd, where her northern side boundary meets the rear of the Respondent's land.
About 9 years ago, seven Juniperus chinensis 'Keteleeri' (Chinese Juniper) (the trees), a small evergreen conifer with Cypress-like foliage, were planted on the Respondent's land, along the common boundary, in close proximity to Ms Condon's rear deck and back yard swimming pool.
The Applicant claims that the trees have grown sufficiently large that they severely obstruct sunlight to her dwelling, her deck and to her pool, and also that all seven trees are likely to cause damage to her house, deck and pool.
Within her application, Ms Condon provided a copy of email communication with Jason Cola, a resident of the Respondent's property, between September and November 2021, requesting intervention with the trees. The Respondent noted organising pruning with a gardener, but it appears that no work proceeded at this time.
As a consequence, Ms Condon submitted an application with the Land and Environment Court, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), to remedy damage that the trees are likely to cause in the near future, and pursuant to s 14B of Pt 2A of the Act, where she seeks orders to remedy a severe obstruction of sunlight by the trees.

Framework

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

Onsite hearing: observations and submissions

The hearing commenced in the Respondent's rear yard with an inspection of the trees, with Ms Condon and Mr Sze in attendance.
The seven trees are growing adjacent to the common boundary in an uninterrupted row about 9 metres long. The trees' foliage creates a dense green wall, through which one effectively cannot see. Prior to the hearing, in August 2022, the trees were pruned, such that their height had been reduced to between 3.7 metres (m) and 4.5 m. This species rarely grows taller than 6 m.
The Respondent had also installed a metal panel boundary fence, about 1.8 m high, topped with lattice, which the Applicant claimed exceeded the permissible height under council regulations.
For her Pt 2 application, Ms Condon's proposed order was "Highly flammable pine trees are liable to fall over touching wooden deck", and for Pt 2A, the Applicant's claim was "High Colourbond fence topped by lattice and backed by pine trees obscuring sunlight". Notwithstanding the ambiguity of these proposed orders in the application, it became clear at the hearing that Ms Condon sought the trees' removal, as well as compensation for the costs of her application.
The Respondent rejected the Applicant's claim, submitting that the trees contributed to its garden and to privacy, and did not require further intervention.

Jurisdictional requirements - Pt 2A

In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
The 7 trees were planted in an orderly row, they have grown above a height of 3.7m since then, and therefore, s 14A(1) is satisfied.
Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
Section 14E(1)(a) of the Act requires the Applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The emails included by the Applicant provide satisfactory evidence to engage s14E(1)(a). I am also satisfied that the Applicant has given notice of the application in accordance with s 14C, such that s14E(1)(b) of the Act has been engaged.

Is the obstruction of sunlight severe?

The next step is to assess the severity of the obstruction of sunlight to a window of the Applicants' dwelling, as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land…
The common boundary runs from east at the front to west at the rear of the Applicant's land. The dwelling is rectangular and close to the common boundary, with windows on its northern and western sides. The house adjoins a broad covered deck on its western side, beyond which is the pool.
The Respondent's property is to the north of the Applicant's land. The hedge commences to the north of the Applicant's swimming pool and extends eastward across most of the side of the Applicant's deck. It does not, however, extend across the northern wall of the Applicant's house, and the eastern end of the hedge is about 1.75m away from this wall's closest window.
In assessing the extent of sunlight obstruction to a window, the Court may gain assistance from criteria used by local government in the determination of Development Applications for overshadowing. The threshold used, pursuant to Part 4C.5 of the Ku-ring-gai Development Control Plan - Solar Access, subsections 2 and 3, is "… at least 4 hours between 9am and 3pm on 21st June to north facing windows and all living areas…".
Though distinctly twisted and ornate in their habit, this species has a narrow, columnar form and the trees protrude north of the boundary by only about 1.5 m. Being about 1.75 m to the east of the hedge, the closest window on the northern wall would thus not be obstructed by the hedge until mid-afternoon, in spring and autumn, and barely at all when the sun is higher in the sky in summer. Therefore, the sunlight obstruction to this north facing window, as a result of the hedge, is negligible.
Sunlight to windows facing westward onto the deck were obstructed at the October hearing by a broad non-translucent roof over the deck. This would apply throughout the warmer months.
In winter, when the sun's arc is low in the sky to the north, the tall fence and lattice, and the Respondent's proximal, imposing two-storey dwelling also obstruct sunlight. The greatest sunlight obstruction, however, is caused by two very large Eucalyptus microcorys (Tallowood) street trees beyond the Respondent's land to the north. As a consequence, the impact of the hedge on winter sunlight obstruction is negligible and its absence would not mitigate obstruction of sunlight to north facing windows in winter.
The applicant's claim regarding obstruction of sunlight to the pool and garden is refused. The jurisdiction of the Trees Act is limited to severe obstruction of sunlight to a window of a dwelling, at 14B(a). It does not extend to shading of gardens, or pools.
In summary, sunlight to windows on the dwelling's northern wall are not obstructed by the hedge until mid-afternoon in the warmer months, and this is a minor obstruction, at worst. Sunlight to windows facing west to the deck is entirely obstructed by the broad solid roof during the warmer months. In winter, the Respondent's house and tall street trees beyond, obstruct sunlight to the Applicant's windows, largely mitigating the obstructive impact the hedge may otherwise have. The hedge contributes to privacy and garden design for the Respondent.
Consequently, I am not satisfied that the obstruction of sunlight to a window of the Applicant's dwelling, as a result of the hedge, is severe. Rather, I consider it minor.

Balancing of interests

If a severe obstruction of sunlight to a window of the Applicant's dwelling had been found to be severe, and thus s 14E(2)(a) had been met for the hedge, I would be required to consider the balancing of interests in s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (2) … (a) … (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required.
Though I am not required here to consider the discretionary factors in s 14F because s 14E(2)(a) of the Trees Act has not been satisfied, nonetheless I have considered s 14F(l), and s 14F(m), in reaching my conclusion above at [27] and [28].
Section 14F(l) of the Act covers "any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells and smoke or the amenity of the land on which they are situated" while s 14F(m) concerns "anything, other than the trees, that has contributed, or is contributing, to the obstruction".

Jurisdictional requirements - Pt 2

With respect to s 7, 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.
The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act which states: (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.
The Applicant has provided evidence that the requirement under s 8(1)(a) of the Act: to serve notice to the respondent at least 21 days prior to the proceedings has been satisfied. The Applicant has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Copies of correspondence in the application includes attempts to resolve the dispute directly with the Respondent. These are the same two tests that the applicant satisfied at s 14C, and s 14E(1)(a) of the Act, respectively.
The next major test that is posed, by s 10(2) of the Act, which states: (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.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.

Damage likely to be caused by the trees

Ms Condon did not make claims of past or present damage, but she was convinced that damage as a result of the trees was likely in the future. The jurisdiction of the Act is limited to "likely damage in the near future", where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
The applicant submitted that the trees were likely to uproot and cause damage to her house, deck and pool, because "this species of Pine tree are shallow rooted and highly flammable". Ms Condon substantiated her claim by noting that "When I purchased my property, a similar tree fell down in a storm, bringing down power lines. I was told at the time of the above dangers".
It is neither reasonable, nor logical, to conclude that these trees are prone to catastrophic failure by uprooting simply because another conifer failed in this manner more than forty years ago. As a generalisation, conifers are no more likely to fail than other trees, and catastrophic failure of trees by uprooting is very rare. In most cases where it does occur, the trees' anchorage and stability had been compromised by root severing or deterioration of the root system from fungal decay (root rot).
Given the location of the hedge trees in a protected area between two houses, their relatively small size, and no indications around their root systems of any soil cracks, or below ground disturbance, I am not satisfied that failure of the trees is likely in the medium term, and certainly not in the near future.
As to the likelihood of near future damage as a result of the trees catching fire, many past applications have included such representations to the Court. It is rare that trees catch fire, other than in bush fires. There is no evidence from the applicant to display that these trees are unusually flammable, nor site circumstances that may present an abnormally high risk of fire initiating.
Particularly in the absence of specific evidence, in past cases under Pt 2 of the Trees Act, claims of likely damage as a result of fire have been consistently refused by the Court. There is nothing about this situation to provide for an alternative outcome, thus this claim is refused.
Ms Condon claimed she had problems with possums as a result of the trees, but the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.
This is explained at [189] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says: "Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]."
Thus, there can be no successful claim under the Act related to possums.
The Applicant also noted that debris from the trees fell into her pool, though she provided no evidence of consequential damage. Claims like this are included in many applications under the Act. The Court has published a Tree Dispute Principle at [20] in Barker v Kryiakides [2007] NSWLEC 292 (Barker) which states that: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis." "The dropping of leaves, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
This principle has been consistently applied by the Court, and in this situation, its context extends to pool cleaning.
Ms Condon was particularly aggrieved by the height and appearance of the metal panel fence and lattice, and she did not like the slope along the top of the hedge that resulted from its pruning. Again, these are not issues within the jurisdiction of the Trees Act. The fence is an issue under the jurisdiction of Ku-ring-gai Council, and preferences about the aesthetics of hedges is not an important consideration under the Act.
Had s 10(2) been engaged, I would be required to consider matters under s 12 of the Trees Act before determining an application made under this Part. In this situation, where s 10(2) of the Act is not engaged, consideration of s 12 is not required.

Conclusions

Under Pt 2A, the Applicant's north facing windows are not obscured by the hedge until mid-afternoon at the earliest, and sunlight to windows facing west onto the deck is obstructed for most of the year by the solid broad deck roof. During winter, when the sun's arc is lower in the sky and further north, the hedge is more likely to obstruct light to these windows, but the Respondent's large house in close proximity, and tall street trees beyond, obstruct light to the Applicant's windows, which renders the impact of the hedge on sunlight obstruction negligible. The absence of the hedge would not mitigate obstruction of sunlight to windows in winter.
As a consequence, I am not satisfied that the obstruction of sunlight to a window of the Applicant's dwelling, as a result of the hedge, is severe, and this claim is refused.
Under Pt 2, the Applicant provided no sound evidence to support her claim that the trees were likely to cause near future damage from uprooting or from catching fire. Concerns about possums were addressed with reference to Robson, at [189], and the issue of tree refuse in the pool was set aside with reference to Barker, at [20].
I am not satisfied that damage as a result of the trees is likely in the near future, thus the application under Pt 2 of the Trees Act is also refused.
Ms Condon made a claim for the cost of her application fee and miscellaneous expenses incurred in making her application. Commissioners do not have powers to award such costs. This is dealt with by a registrar or judge, upon lodgement of a Notice of Motion to the Court.

Orders

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

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2023

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Judgment (13 paragraphs)

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