Cooper v Morgan-Basnett

The application

5. The Applicant, pursuant to s 7 (Pt 2) of the Trees Act has applied to the Court seeking orders that the Respondents trim the trees at their expense. The Applicant has also applied to the Court under s 14B (Pt 2A) of the Trees Act, seeking orders for the Respondent to prune the trees located between the properties. The three trees (Brush Cherry and Lilly Pilly) are close the Respondent’s rear boundary.

6. The Respondent enjoys the privacy and amenity the trees provide for their rear yard and seeks to maintain the trees in their current state. The trees are mature and have reached a height of approximately 8 metres.

7. The Applicant is concerned about the amount of sunlight reaching the rear of their dwelling and submit the amount of shade cast by the trees onto their property is unreasonable and which could easily be remedied by pruning.

The trees

8. The trees have been identified in the expert report as Tree 1 – Brush Cherry (Syzygium australe), Tree 2 – Small-leaved Lilly Pilly (Syzygium luehmannii), and Tree 3 – Brush Cherry (Syzygium australe). The expert report assessed all three trees to be in good condition. The trees have previously been pruned along the property boundary. Although not strictly required, the Respondent has given for consent to the pruning of the trees on the northern side along the property boundary. The Respondent has not given consent for any pruning to reduce the height of the trees giving reasons of privacy and amenity. Mr Cooper has in the past and is able to again, prune the trees along the property boundary and is seeking to share costs in this work.

Damage to dwelling and fence

9. Damage to the Applicant’s house or warping of the fence was not demonstrated at the site view. Repair to the stormwater pipe inlet to the tank was observed, however there was no evidence adduced to show that the damage was caused by the tree roots. I see no need to make orders for any damage to the dwelling or fence caused by the trees or tree roots.

Bushfire risk

10. As the owner of the property with the benefit of the Development Approval from Port Stephens Council to build a dwelling on 7A Irene Crescent, Mr Cooper is responsible for adhering to the conditions of that consent in relation to bushfire risk.

Framework of the Act

11. Within the Trees Act, there are several jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

12. In applications under Pt 2 of the Trees Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. No evidence was adduced during the hearing that leads me to conclude that the trees have caused damage or injury, therefore this test is not met.

13. Some jurisdictional tests are clearly met. I am satisfied that the Applicant has tried to reach agreement with the Respondent (s 14E(1)(a)). The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height (s 14A(1)(b)). The trees have been planted so as to form a hedge (s 14A(1)(a)). On these matters the parties are agreed.

14. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit under s 9 of the Act is engaged.

15. The issues to be determined then are as follows.

16. Is there a severe obstruction of sunlight caused by the trees?

17. If so, does the Applicant’s desire for direct sunlight outweigh the reasons not to interfere with the trees? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

18. An order must not be made unless the trees are severely obstructing sunlight to a window of a dwelling situated on the Applicant’s land, and the severity and nature of the obstruction is such that the Applicant’s interest in having the trees pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees.

19. The following addresses matters that must be considered in determining whether orders are appropriate.

20. The trees are located such as to cast shade during some parts of the day on the Applicant’s property.

21. The trees were planted on the Respondent’s property and was at their current height prior to the construction of the dwelling on the Applicant’s property.

22. The Respondent submits that the trees were planted as a part of a planned landscape design to act as a privacy hedge and for the overall amenity benefits, and that pruning the trees in an uneven manner would diminish these attributes.

23. During the onsite hearing I observed the position of the sun relative to the dwelling and rear yard and resultant shade patterns, and concluded that, when including other trees and vegetation, the trees added to the loss of sunshine by approximately two hours per day.

24. The part of the dwelling affected by shade is one of the main living areas.

25. The application includes photographs of the trees. These are useful, however the severity of the obstruction is assessed on the day of the hearing. Based on their current height, I accept that there may be some obstruction of sunlight to the Applicant’s windows, but I do not accept that it is severe. The trees do not cast shade that represents a complete loss of sun.

Discretionary matters

19. An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land if the obstruction occurs as a consequence of trees being situated on adjoining land.

20. I can see nothing at s 14B of the Trees Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Trees Act. However, the Court has relied upon background material such as the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy [2020] NSWLEC 1462). The 2009 Review concluded (on p 35) that the scope of Pt 2A should be limited to:

“…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 which had not existed at the time of purchase.”

Conclusion

21. Damage caused by the trees was not demonstrated. Orders for damage to the dwelling or fence caused by the trees or tree roots will not be made.

22. Only the trees are planted so as to form a hedge. Considering the overall view from each window, I am not satisfied that the trees causes a severe obstruction of sunlight. Therefore, the Court's jurisdiction under Part 2A of the Trees Act is not engaged.

23. As a result of the above, the application is dismissed.

Orders

24. The Orders of the Court are:

25. The application to prune the trees is dismissed.

P Nichols

Acting Commissioner of the Court