Cook & anor v Howard & anor; Kyriakides & anor v Howard & anor

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This judgment concerns two applications, pursuant to s 14B part 2 A of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by the owners of adjoining dwellings in Charlestown. The respondents' property adjoins both applicants' properties at its rear boundary. 2The applicants contend that trees growing along the respondents' rear boundary severely obstruct sunlight to windows of their dwellings and views from their dwellings. 3The Cooks (matter 13/ 20308) have nominated four trees. The trees are indicated on an aerial photograph in their application claim form. Tree 1 is a Fiddlewood, Tree 2 adjoining it is a Lillypilly. Tree 3 is indicated as Gum tree(s) and T4 is a Chinese Elm. Trees 3 and 4 are located near each other but some distance from T1 and T2. 4The Cooks are seeking orders for the Fiddlewood and Lillypilly trees to be removed and replaced with a more suitable, smaller growing species to be kept at a height they specify. They are also seeking orders for the pruning of the Gum(s) to an agreed height (not specified) and the removal of the Chinese Elm. 5The Kyriakides (matter 13/20309) do not number any of the trees but rather show them as a linear series of crosses on the diagram in the claim form. 6The orders the Kyriakides seek are the removal of the Fiddlewood and Lillypilly and their replacement with smaller trees to be kept at a height no greater than one metre above the fence line. 7As is usual in these matters, as there are a number of preliminary jurisdictional tests to be determined, the hearing commenced on the respondents' property. Several jurisdictional tests must be sequentially satisfied before the Court's jurisdiction to make orders under s 14D is engaged. 8This assessment process is described in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 as a series of gates through which one has to pass with the end point being an order for some intervention with one or more of the trees. If any jurisdictional test is not passed, the gate remains closed and the Court's determination of the matter ends. 9The first of these tests is whether the Act applies to the trees subject to the applications. 10Section 14A(1)(a) states: (1) This Part [being Part 2A] 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. 11Dealing first with the Gum(s) (T3) in the Cook's application. I understand this to be the group of Eucalyptus spp and Angophora spp growing on the south-western corner of the respondents' property. These trees have all the characteristics of being remnants of the original bushland from which the residential area was carved. 12The respondents, in exhibit 1, include a number of photographs taken shortly before and during the construction of their dwelling in 1993/1994. The photographs (A, C, D) show the stand of trees in question. I observe that the immediate locality retains areas of natural bushland. The respondents' statement and photographs verify that the Eucalypts and Angophoras were well established prior to the respondents' purchase of their land. 13In Johnson v Angus [2012] NSWLEC 192 Preston CJ provides a detailed analysis of s 14A(1) of the Act. In [38] His Honour states: 38 If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees. 14On the evidence before me, and in the absence of any evidence to suggest otherwise, I am not satisfied that Part 2A of the Act applies to Tree(s) 3. Therefore, the Court has no jurisdiction to consider these trees, and this aspect of the Cook's application is dismissed. 15In regards to T4 in the Cook's application, the Chinese Elm, this tree is planted between the group of Eucalypts and Angophoras and the dividing fence between the parties' properties. It is four or so metres from an olive tree that is not the subject of the application. The tree has been severely reduced to a short trunk. 16In my view, irrespective of its past, current, or future size, this is a single tree that is not part of a group of two or more trees that have been planted so as to form a hedge. The Chinese Elm is a considerable distance from the Fiddlewoods and Lillypillies planted elsewhere along the rear of the respondents' property. Therefore I find that Part 2A does not apply to T4 and the part of the Cook's application concerning this tree must be dismissed. 17Turning to the Fiddlewood(s) and Lillypilly/ Lillypillies. In 1994/95 the respondents landscaped the rear of their property. Photograph B in Exhibit A and photograph C in Exhibit 1A show small widely spaced plants in a staggered arrangement. The respondents planted the trees as a screen to provide privacy to their garden from the dwellings behind and upslope of their property. One owned at the time by the Cooks and another purchased later by the Kyriakides. 18The site inspection showed a widely spaced row of Lillypillies along the fence line, inter-planted in a staggered arrangement with a forward row of Fiddlewoods. The spacing between the trunks is some two to three metres. 19The applicants, in particular the Kyriakides, maintain that when they made their applications to the Court, the respondents' trees formed a thick hedge that they say obstructed sunlight to and views from their dwellings. Undated photographs included in both applications certainly show dense and interlocking foliage along the rear of the respondents' property. 20Putting the applicants' case at its highest, I am prepared to accept that the Lillypillies and the Fiddlewoods form a hedge for the purpose of Part 2A of the Act. Therefore s 14A(1)(a) is satisfied for these trees. 21According to the respondents' evidence (Exhibit 1) the Fiddlewoods were extensively pruned in early June 2013, and after receiving permission from Lake Macquarie City Council, the Lillypillies were substantially pruned in late June/ early July 2013. Photographs K and R in Exhibit 1, and photographs E and M in exhibit 1A clearly show the extent of the pruning. 22While the next relevant jurisdictional test (or gate) is whether the trees reach a height of at least 2.5 m above ground level (s 14A(b)), at the hearing the applicants acknowledged that the trees, at their current height, do not now obstruct sunlight to or views from their dwelling. One of the Fiddlewoods was measured with a tape measure and found to be approximately 2.5 m. However given the acknowledgement by the applicants, it was considered there was little utility in measuring all the pruned trees. 23Relevant here is the jurisdictional test in s 14E(2). 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. 24The test of current severity of obstruction of views or sunlight in s 14E(2)(a)(i) and (ii) must be satisfied before the balancing of interests in s 14E(2)(b) is considered. 25While the applicants accept that the trees, as seen at the time of the hearing, are not obstructing views or sunlight, they were under the impression that the Court would consider the photographs included in their applications as proof of their concerns and then make orders to limit the future growth of the trees. 26I acknowledge the applicants' confusion. Section 14B enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of either views from a dwelling or sunlight to windows of a dwelling as a consequence of trees to which the Act applies. That is, s 14B enables someone to make an application to the Court. That application must then be assessed against the relevant jurisdictional tests. 27Relevantly, section 14A(2)(a) uses the word 'are'. The Court has consistently held that the use of the present tense requires the trees (to which Part 2A applies) to be severely obstructing views or sunlight at the time of the hearing. This has been discussed in Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] and, in more detail, in Granthum [43] - [52], and subsequently in many judgments. 28There is nothing in the Act to prevent a respondent taking action prior to the hearing to remove the obstruction. Similarly, there is nothing in the Act that enables the Court to make orders to prevent future obstructions unless s 14E(2) is satisfied. 29In the interests of procedural fairness, the applicants were given the opportunity to show the Court the views and or windows they contend were obstructed. However, after some discussion and clarification of the meaning of s 14E(2)(a), this was declined. 30As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 31Therefore, as a consequence of the foregoing the Orders of the Court are: (1)Appeal 20308 of 2013 is dismissed. (2)Appeal 20309 of 2013 is dismissed.