El Khoury v Hajjar

Framework

1. The Court cannot make orders under Part 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views from a dwelling, or, of sunlight to a window of the applicant's dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.
2. Under Part 2 of the Trees Act, the Court cannot make orders 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, unless the nexus between the tree/s and the damage, or genuine risk of injury, is substantiated by sufficient, appropriate evidence. As with Part 2A, if so satisfied, I must consider a range of matters such as the benefits that the trees provide.

Onsite hearing: observations and submissions

1. The hearing took place onsite, with Mr and Mrs Hajjar, and Mr El Khoury present. While, on page 5 of the 'Tree Dispute Application', Mr El Khoury is noted as the applicant's Agent, I was unable to find evidence that the requirement (also noted on page 5 of the 'Tree Dispute Application') of "a letter from the applicant… which gives the agent authority to act on behalf of the applicant", had been met.
2. Similarly, while Mrs Hajjar is listed as the respondent, the respondent's case was prosecuted almost entirely by Mr Hajjar, who is a lawyer. While Mr Hajjar notes and signed that he is the respondent's legal representative on Mrs Hajjar's Affidavit, dated 26 March, 2021, and on his "Statement of Salim Hajjar", of the same date, the respondent's Appearance Form, of 18 February, 2021, notes only that "The respondent appears".
3. I am satisfied, however, given the arboricultural expertise which I bring to the matter, that these procedural anomalies, which are not uncommon with self-represented parties appearing under the Trees Act, had no bearing on the outcome of the case.
4. The trees were initially inspected from the respondent's rear yard. The Photinias were planted at close and regular spacings, so as to form a hedge. Their foliage creates a dense green wall about seven to eight metres tall, and perhaps nine metres wide. They are healthy trees that appear to be growing vigorously.
5. The Court moved to Mrs El Khoury's property, which is to the west of the respondent's. The level of the applicant's land is about one metre lower than the respondent's. The nominated windows are located on the eastern side of the house, which is two-storey, as is the respondent's. Windows W1 and W2 are on the upper storey, and they were inspected with consideration of sunlight obstruction. The likely impact of building design on sunlight, was also considered.
6. The respondent is concerned about overviewing of his back yard from the applicant's upstairs windows, and loss of summer shade.

Orders sought

1. The applicant proposes orders under Part 2 for removal of the trees, and replacement with a different species, and/or, to require the taking of specified action to maintain a tree or trees at a certain height, width, or shape.
2. The applicant proposes orders under Part 2A to require the taking of specified action to maintain a tree or trees at a certain height, width, or shape, and/or, to require the taking of specified action to remedy the obstruction of sunlight.
3. The Pt 2A matter will be considered first.

Jurisdictional requirements - Pt 2A

1. 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?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. 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).
3. Section 14A(1) is thus satisfied for this hedge.
4. 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.
5. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
6. Documentation has been provided by both parties which details verbal and written communication, and negotiation towards a settlement of this dispute. Mr El Khoury noted frustration that the respondent failed to accept his offers to engage in mediation organised through a Community Justice Centre (CJC), while Mr Hajjar, disputed various aspersions cast upon him, as a result of the negotiation process. Both parties engaged in a private mediation process, but the agreement so formed could not be implemented successfully.
7. Regardless of the enmity which is regrettably common in such disputes, I am satisfied that the applicant has met the requirement of s 14E(1)(a), to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
8. The next step is to assess the severity of the obstruction of sunlight to the applicants' dwelling as a consequence of any or all of the trees in the hedge.
9. 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 applicant

1. The applicant nominated two east facing windows on the upper level of the house, W1, which is a bedroom, and W2, noted as an upstairs living area. On the application claim details form, 2011 was shown as the year of construction of the applicant's dwelling. In later correspondence to the Court, Mr El Khoury notes construction occurring in 2013, and written and photographic evidence provided by the respondent confirms this. On the claim details form, the applicant claims that the hedge was 3.5 metres tall at this time.
2. In the claim details, the applicant contends that "around 3-4 hours of sunlight is lost to both W1 and W2" in winter, and "around 4-5 hours of sunlight is lost to both W1 and W2" in summer, "as a result of the tall trees obstructing the light". She claims that the hedges obstruct sunlight entering through both W1 and W2, and "as the sun moves across in a north-westerly direction, the eastern side of the house misses out on any further sunlight". Mrs El Khoury also says that the proximity and height of the hedge "creates an overwhelming feeling of claustrophobia as my backyard is very small".
3. Ms El Khoury noted three previous occasions when the hedge was pruned at her expense, and with a requirement for refuse to be removed through her property. The applicant notes similar conditions being included in the agreement established with the independent mediator, and that insufficient height reduction was allowed by the respondent, when the 'tree lopper' tried to carry out the works, so as to make it worthwhile for the applicant to execute the pruning works.
4. The applicant included an Arborist report from Mr William Home, trading as Dr Treegood. Mr Home estimated the hedge height as about 10 metres, or higher when viewed from the applicant's property, and notes observing a shadow cast into the applicant's rear garden, as a result of the hedge. Though he notes that solar access is not in his field of expertise, Mr Home asserts an assumption that "most of the summer morning light is blocked" to the applicant's house and garden. He provides no evidence to support this, nor to substantiate his comments that both Photinia flowers and Schefflera foliage are known to "give allergic reactions".
5. Mr Home includes the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 as an appendix to his report, but at no point does he note having read, and agreeing to be bound by this Code of Conduct, notwithstanding that this is an explicit requirement of an Expert Witness. This, and the aforementioned unsubstantiated assumptions and comments may be seen as lazy at best, or, as an attempt to provide credibility for unfounded assertions. Either way, Mr Home's report is of little use to his client, and of no use to the Court.
6. On 22 February, 2021, Mr El Khoury provided the Court with "Additional information to be added to application". In summary, this detailed his perception that the terms of agreement pursued by Mr Hajjar were one sided, only a temporary solution, and unreasonable. He detailed the difficulties he, his home builders, and tree loppers had endured, dealing with Mr and Mrs Hajjar over the previous eight years, and noted that Mr Hajjar had exploited the power of his position as a "lawyer" on various occasions.

The respondent

1. In his Statement, dated 26 March, 2021, Mr Hajjar provides an extensive, detailed commentary of events and negotiations between the parties since 2018. Much of this reads as an indignant defence of aspersions cast on his character and behaviour, and speaks to the applicant's alleged behavioural impropriety through the negotiation process.
2. Other than the evidence that allowed me to determine that s 14E(1)(a) has been satisfied, the commentary provided by each party with respect to the behaviour and character of the other, is irrelevant to the Court.
3. In his written submissions, of 27 March, 2021, Mr Hajjar asserts that: 1. The trees subject to the application do not severely obstruct sunlight to a window of a dwelling situated on the applicant's land, 2. In the alternative, factors to be considered under s 14F of the Trees Act would serve to mitigate against an order to interfere with the trees, and 3. Further in the alternative, the applicant has not complied with the requirements of s 14E(1)(a) of the Trees Act.
4. Though Mr Hajjar details various aspects of the "applicant's engagement in the negotiation process" to display that the applicant did not make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, I remain satisfied that s 14E(1)(a) of the Trees Act has been met.
5. With respect to 'Sunlight to a Window', Mr Hajjar submits that; 1. "The onus is on the Applicant to satisfy the requirements of s14B(a) of the Act. At its highest, the evidence on which the Applicant relies has not allowed the Applicant to discharge this onus (Clancy v Bell). 2. The Applicant's "Arborist Report" refers only to solar access to garden, to which the Act does not apply (Clancy v Bell; Holden v Smith). 3. Any sunlight obstructed is early morning sunlight only (Jayawardena v Salvia; Davine v Beckitt) and only for a short period of time, ending between 8:15am-8:30am depending on the time of the year. The duration of obstruction by the trees is shorter than the duration of obstruction in cases where the Court found no severe obstruction. 4. The sunlight available to W1 and W2 is 100% from well before 9am (and possibly from around 8am), and in any case is well above the 3-hour availability to 50% of living room area windows between 9am-3pm on 22 June that has been used by the Court as a guide when considering severity of obstruction of sunlight. 5. The Court generally considers that winter sun is more valued than summer sun (Tonoli v Rappo). The orientation of the properties and the trees is such that the shading effect of the trees is minimal in winter, ending completely by around 8:15-8:30am. 6. W1 is a bedroom window. In general, living areas, including kitchens, are given a higher priority than bedrooms and other areas (Voeten & anor v Adams). W2 should not be considered as a window to a "living area", given the small size and limited use of that area as per paragraph 13 of the D Hajjar affidavit. 7. Most of the obstruction to W2 is by the roof over the balcony, and not by the trees (Flynn & Anor v Aththas)."
6. Mr Hajjar submits that "If the Court is minded to consider that the obstruction is severe, the following factors under s 14 F of the Act mitigate against interference with the trees: 1. The trees existed prior to the construction of the Applicant's house and were very tall (not significantly shorter than their current height). The Court has held that "The existence of a well-established hedge and the fact that trees grow should be taken into account when purchasing land or when planning and designing a dwelling" (Devile & anor v Frith & anor [at 40]). A reduction in height of three metres as demanded by the Applicant will provide sunlight availability to the Applicant that did not exist when the Applicant constructed her dwelling. (Fryday v The Owners-Strata Plan No 15039; Chambers v Graham), but will have an adverse impact on the Respondent's ability to enjoy the shading aspects of the trees into her yard and her back deck. The height of the hedges is not materially different - see paragraph 25 of D Hajjar affidavit. 2. The trees contribute to the local ecosystem in that they are a safe nesting environment for birds. 3. The trees make a significant contribution to privacy, landscaping, garden design, protection from the sun, and the amenity of the Respondent's land. The trees are an extremely important contributor to the Respondent's ability to make use of her yard and her deck, and provide privacy and important shade protection for her children from the harsh afternoon sun which sets behind the trees (Haindl v Daisch). A reduction in height will have minimal impact on the Applicant in terms of extra sunlight, as the sunlight obstruction caused by the trees is fleeting, and ends well before 9am (even possibly around 8am), yet height reduction will have a disproportionately large impact on the Respondent's family's protection from the harsh afternoon sun and their ability make use of their yard and back deck with comfort (sic). The trees are a key component of the character and value of the Respondent's yard. In the summer when the trees shade the house they also serve as an insulator and reduce the need for air conditioning. 4. The most significant contributor to obstruction of sunlight to W1 and W2 is the Applicant's own building (including the roof over the Applicant's balcony). This roof over the balcony contributes significantly more to the shading of both W1 and W2 in terms of duration and coverage of shade, especially in winter, than the trees do (Hendry & Anor v Olsson; Flynn & anor v Aththas). In addition, other objects (including the Respondent's higher building and higher unrelated trees) are likely to continue to obstruct sunlight into W1 and W2 at various times of the year, but there are no other objects that can replace the shade to the Respondent's yard and deck if the tree height is reduced. 5. The Applicant has not taken steps to reduce the impact of the loss of light. For example, the Applicant did not, despite the existence of a well-established hedge, incorporate skylights or design her house so as to avoid shading to W1 and W2 by the Applicant's own building. 6. The amount, and number of hours per day, of any sunlight that is lost as a result of the trees is minimal, short-lived, and gradually decreases as the sun rising, eventually resulting in no obstruction whatsoever by around 8:00am-8:30am depending in the tine if year (sic). The Court generally considers that winter sun is more valued than summer sun (Tonoli v Rappo) and the orientation of the properties and the trees is such that the shading effect of the trees is minimal in winter, ending completely by around 8:15-8:30am. 7. The height of the trees helps shield background buildings and urban infrastructure from the Respondent's view, contributing to the character of the yard. The remaining view from the Respondent's property after reduction of the tree height would make background buildings more visible. See Danielle Hajjar affidavit at paragraph 14. 8. W1 is a bedroom window. In general, living areas, including kitchens, are given a higher priority than bedrooms and other areas (Voeten & anor v Adams; Bagley v Guthrie). W2 should not be considered as a window to a "living area", given the small size and limited use of that area as per paragraph 13 of the D Hajjar affidavit."

My findings

1. In the main, I accept the respondent's position. The height of the top of the hedge, relative to the height of W1 and W2, and consideration of the distance between the hedge and W1 and W2, leads me to conclude that the obstruction of sunlight as a result of the hedge would be minor. The orientation of the properties and the trees is such that the shading effect of the trees would be reduced in winter, when the arc of the sun's passage through the sky is significantly further to the north.
2. The respondent references the guidance which the Court takes from criteria often used by local government planners in their consideration of overshadowing, when assessing development applications. This sets a threshold where less than three hours of sunlight availability to 50% of living room area windows between 9am-3pm on 22 June (the winter solstice) is considered unacceptable, and is generally viewed as a severe obstruction of sunlight by the Court.
3. In this case, as the nominated windows face roughly east, the dwelling itself blocks almost all afternoon light. A pro-rata approach would thus require sunlight to be obstructed to 50% of a living room area window for 1.5 hours or more, between 9am and midday on 22 June, for the obstruction to be considered severe.
4. Though no shadow diagrams were provided by the applicant to support her position that around "3-4 hours of sunlight is lost from W1 and W2" in winter, as a result of the trees, and around 4-5 hours in summer, based on my site observations, and photographs provided by the respondent, I am satisfied that this is not the case. If there is any such sunlight obstruction as a result of the hedge during the period nominated in [41], it is only for a short period, in the early morning.
5. I also accept the respondent's position that neither W1 nor W2 are living room areas. W1 is a bedroom, and the primary living room is downstairs, where sunlight access is blocked by a broad roof. Further I accept that the building design, particularly a broad upstairs balcony roof, is the primary element resulting in shadowing of W1 and W2. Photographs on page 4 of Danielle Hajjar's affidavit, dated 11 June, 2020, clearly show this, and this would be the case throughout the year.
6. Had s 14E(2)(a)(ii) been met for the hedge, I would need to contemplate the balancing of interests at s 14E(2)(b). Considering s 14F factors, as required by the Trees Act, I would have placed strong weight on the benefits the trees provide for the respondent, particularly in terms of privacy and shading. I would also have considered the trees' moderate contribution to biodiversity, as they likely provide habitat for bird life.
7. Based on various photographs within the respondent's affidavit, it appears that the trees were much higher than the 3.5 metres noted on the applicant's claim details form, when the house was constructed in 2013.
8. In this respect, I take guidance from Holland v Bell [2017] NSWLEC 1322 at [12]-[13], where, in a somewhat similar situation, Acting Commissioner Galwey refers to the Interpretation Act 1987: "[12] The Interpretation Act 1987 permits me to refer to relevant material to assist in interpreting the Trees Act. Here I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review') for assistance with interpreting "severely obstructing a view" (s 14E(2)(a)(ii)). [13] On page 39 the Review describes the Trees Act's scope (with my emphasis): "The Court would only have the power to hear matters regarding: • hedges which are both high, and similar to a wall in their visual effect. • hedges which affect people's homes (rather than their gardens or other structures on their property). • cases of severe impact on views and light. This is consistent with the recommendations of the NSW Law Reform Commission in its 1998 report on Neighbours and Neighbour Relations, where it was recommended that there be a legal remedy if 'enjoyment of property has been severely affected by a neighbour's trees blocking out sunlight' or 'enjoyment of property has been severely affected by a neighbour's trees blocking out a view'. • 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. • hedges which are directly next door (not one or two properties over).""
9. I particularly consider the fourth dot point in [46], which says "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".
10. In this context, "the time of purchase" would be replaced with 'the time of construction of the dwelling', and I am satisfied that the quoted statement in [47] applies here. I also note dot point two, which says, the Court would only have power to hear matters regarding "hedges which affect people's homes (rather than their gardens or other structures on their property)."
11. For all these reasons, the Part 2A application is dismissed.

Jurisdictional requirements - Pt 2

1. 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.
2. The next consideration of particular importance is s 10 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. (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.
3. If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act.

The applicant

1. Mr El Khoury contended that his mother was allergic to Photinia flowers, and that they aggravated various medical conditions which she endured. He stressed that she should be able to be safe in her garden. At question 9 of the Part 2 Application Claim details, he describes various toxins attributed to Shefflera arboricola, and adds that the Photinias "have been causing airway and skin sensitivities. They and their flowers/ leaves are known to worsen existing allergies and provoke new allergic reactions".
2. A letter from Mrs El Khoury's doctor, (Dr B.A. Maroun), was included with the applicant's lodged documents. It described the applicant's medical conditions, and the negative impact on these conditions as a consequence of the flowers, leaves, and dust from the trees.
3. Mr El Khoury also contended that roots from the trees were causing cracks in adjacent brickwork, and photographs of cracking were included in the applicant's documentation.

The respondent

1. Mr Hajjar submitted that "evidence provided by the Applicant in support of her injury claim does not satisfy the requirements of the Supplementary Standard Directions or meet the evidentiary standards previously required by the Court (eg Oakey v Owners Corporation Strata Plan 22678; Turner v O'Donnell; Hurditch v Staines)".
2. He notes that "The Court has found that " … fear or concern or an actual element of discomfort (but not injury) ... " is not sufficient to grant an application (Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723)".
3. He verbally submitted that no specific medical evidence of allergy, such as test results, had been provided by the applicant.

My findings

1. The Act does not include any definition of the term "injury". In Tuft v Piddington [2008] NSWLEC 1249 (Tuft), it was held that, for the purposes of the Trees Act, "injury" encompasses allergic reactions or other medical conditions (in Tuft, the injury was an asthmatic reaction to pollen).
2. As this application is made based on injury said to arise from a medical condition, at the directions hearing of 22 February, 2021, the Court gave specific Supplementary Standard Directions requiring the applicant to provide properly qualified medical or scientific evidence of a link between the injury and the trees which are the subject of the application. These Supplementary Standard Directions are noted above at [5].
3. Supplementary Standard Direction 1 required provision of "any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim".
4. Supplementary Standard Direction 2 says, "Any expert evidence concerning matters contained in 1 above is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005".
5. The so called 'medical evidence' provided by the applicant at question 9 of the Part 2 Application Claim details, is accompanied by no reference, nor clarification as to whether it is drawn from appropriate peer reviewed literature. It appears likely to have been sourced from the internet.
6. The evidence within Dr Maroun's letter is largely unsubstantiated, and does not include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005.
7. A similar issue to that in Tuft, concerning an application based on a claim of an allergic reaction to wattle, arose in Hurditch v Staines [2008] NSWLEC 1351 where the above Supplementary Standard Directions had been given and no relevant evidence produced. The Court held that injury as a consequence of the tree concerned had not been established.
8. As to the claim, that the trees' roots have caused, and/or are causing cracks in adjacent brickwork, no evidence has been provided to link the roots to the damage, there is only conjecture.
9. In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
10. For the reasons outlined above, I also find that injury as a consequence of these trees has not been established, and, as there is insufficient evidence to link tree roots to cracks in brickwork the Part 2 application is therefore, dismissed.
11. Though, as a result of my decisions, there is no requirement for the respondent to reduce the hedge's height, or prune it in any other way, this does not imply that Mrs El Khoury is not adversely impacted by the hedge. Nor does it prevent future arrangements being made between the parties for pruning of the face of the hedge which overhangs the boundary, so as to reduce any such impact. As there is no obvious benefit to the respondent from such pruning, however, it does not seem unreasonable that such pruning should be at the applicant's expense.

Orders

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

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: 19 August 2021