Guo v Sefton

Land and Environment Court (NSW)|2021-02-25

Background

Mr Guo and Ms Shang, the applicants, occupied their Pymble property in 2008. They share a side boundary with the respondents, Mr and Mrs Sefton, who have resided at their property since 1996.
In 2004, Mr and Mrs Sefton gained approval from Ku-ring-gai Council (Council), for the installation of a tennis court in their front yard, under Development Application (D.A.) 1502/03.
In his written submission, Mr Sefton advised that the granting of this D.A. was subject to the following relevant consent conditions: "Condition 18 - The use of the tennis court shall not interfere with the amenity of the local neighbourhood. Condition 27 - On completion of the landscape works/ tree planting or screen planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to the issue of final Certificate of Compliance. Condition 29 - to preserve landscape and streetscape amenity the existing screening hedge located adjacent to the southern (front) boundary is to be retained. Condition 39 - A plan and specification of the proposed landscape works for the site shall be prepared in accordance with Council's DCP No 38, by a Landscape Designer to enhance the amenity of the built environment and protect the Ku-ring-gai landscape character."
In order to maintain privacy in their yard, in about 2004, Mr and Mrs Sefton replaced an old hedge by planting a row of about 20 Leyland Cypress trees (the trees), parallel with, and adjacent to the common boundary. Behind the hedge, an existing boundary fence, about 1.8 metres high, separates the properties.

Framework

The Court cannot make orders under Part 2A of the Act unless it is satisfied that the trees are causing a severe obstruction of views or of sunlight to a window of the applicants' dwelling. If so satisfied, I must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

The hearing took place onsite. Both applicants were present, and Mr Sefton represented the respondents. I bring my own arboricultural expertise to the matter, in particular regarding the growth habit of this species of tree.
The trees remain in an uninterrupted row. They were planted at close and regular spacings, so as to form a hedge. Their foliage creates a dense green wall, through which one effectively cannot see. The trees had recently been pruned in January 2021, and were about 3.45 metres tall.
Mr and Mrs Sefton value the trees for their privacy, for their contribution to the garden, and to the amenity of the local area. They are healthy trees that are growing vigorously and, without regular intervention, are likely to grow much taller.
The respondents' property is to the west of the applicants, and their dwelling is set back further on their block than that of the applicants. There are windows along the western side of the applicants' house. The respondents are concerned about overviewing of their front yard from the applicants' windows.
The applicants submitted that though they initially sought orders for pruning of the hedge to a height of 2.5 metres, they were concerned about the trunks being only about 2.3 metres from their house, and would prefer for the Cypress trees to be replaced with smaller species.
The applicants made no formal application for the amendment of their application for orders, however, and leave for such amendment was not granted by the Court.

Jurisdictional requirements

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 purposes of the Act?
Section 14A(1) states: (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).
Section 14A(1) is thus satisfied for this hedge.

Have reasonable efforts been made to reach agreement?

Section 14E(1)(a) requires the applicants make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated.
Mr Sefton submitted that the effort, made by the applicants, to reach agreement with the owner/s of the land on which the trees are situated, was insufficient or made inappropriately, and thus failed to constitute a 'reasonable effort', as required by the Act.
While I do not make my final decision as to satisfaction of 14E(1)(a) until just before I make an order, I did refer Mr Sefton at the onsite hearing to Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) where Preston CJ provides extensive guidance to the 'reasonable effort' required to satisfy the Act. At [195] of Robson, his Honour notes that "The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
His Honour also provides context around consideration of this requirement at [191]-[194] of Robson: "Reasonable effort to reach agreement 191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: '[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.': para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
The CJC mediation of March 2020 failed to result in agreement between the parties.
Mr Sefton, in an email to the applicants, dated 5 January 2021, claimed, at point 2, that he had "obtained the Mediator's notes and the outcome was for the parties to contact each other". He advises: "You are the party seeking to impose an action on me. So it is obvious that for me to visit your home, which I have always been willing to do, it would need to be at your invitation/ instigation."
Mr Sefton adds; "Furthermore the Land and Environment Court's practice notes on these matters require you to contact the landholder (me), which you have never done."
To the contrary, Mr Guo submitted that he had invited Mr Sefton to his property to inspect the hedge at the conclusion of the CJC mediation session. Mr Guo claimed that Mr Sefton decided such a visit was inconvenient at that time, and Mr Sefton said he didn't remember the circumstances.
Mr Guo's response at Q29 of his application includes; "…It was agreed at the (mediation) session that our neighbour would contact us and come to our place to have a look at the impact of the high hedge on our house. We have not heard from our neighbour so far".
While it appears that the parties have taken different understandings from the CJC mediation sessions, in terms of 'next steps' towards dispute resolution, I am not convinced by the respondent's argument that the mediator's comment (above at [27]) for "the parties to contact each other" should be reasonably construed to require the onus for such contact to sit only with the applicant.
If such an onus existed, and satisfaction of 14E(1)(a) hinged on this under the Act, any respondent could simply absent themselves from contact with an applicant, to prevent satisfaction by the applicant of the 'reasonable effort' requirement. This is not the intention of the Act, nor how it functions.
From about 2018, the applicants communicated with the respondent, verbally and in writing, seeking pruning of the hedge. They organised and engaged in an unsuccessful CJC mediation session with Mr Sefton in early 2020. The case file included a letter from the applicants, dated October 19, 2020, which advised the respondents of lodgement of an application under the Act, and in doing so, they provided 21 days' notice of lodgement.
I am thus satisfied that the applicants have met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
Concluding at [195] of Robson, Preston CJ notes that a more demanding requirement exists under s 88K(2)(c) of the Conveyancing Act 1919 and s 40(2)(d) of the Land and Environment Court Act 1979, which provide that the applicable court should not make an order imposing an easement over land unless it is satisfied that "all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful". The requirement that "all reasonable attempts" be made is more demanding than "a reasonable effort" to reach agreement. Nevertheless, in relation to the more demanding requirement that "all reasonable attempts" be made to reach agreement, Lloyd J noted in Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 at [14]: "a) The applicant need not negotiate exhaustively to a consensus which involves concessions he may deem not to be in his best interests (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14644.2). b) The applicant is not required to demonstrate a willingness to meet any demand, even an unreasonable demand, to satisfy the court that all reasonable attempts to obtain the easement have been made (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.8). c) The court should make a determination on the basis of the whole circumstances of the case (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.2). d) The test requires an objective assessment (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.8). e) The requirement is satisfied when objectively it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future (Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845)."
At [196] of Robson, Preston CJ concludes: "These tests also provide guidance in ascertaining whether the requirement in s 10(1)(a) that the applicant has made 'a reasonable effort to reach agreement' is satisfied." The tests in s 14E(1)(a) are equivalent to those in s 10(1)(a).
Applying these five tests to the situation at hand, I am further satisfied that the applicants have made, at least, "a reasonable effort to reach agreement".

How severe is the obstruction of sunlight or views?

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.
Section 14E(2)(a) states: (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.
There are three interrelated contentions that require consideration; 1. Whether the hedge started causing a severe obstruction of sunlight during the period of the applicants' occupation of their property. 2. The frequency of pruning of the hedge. 3. Whether intervention with the Cypress trees is protected by the aforementioned consent conditions attached to the granting of development consent D.A. 1502/03.
I understand that trees of another species which formed a hedge where the Cypress currently stand, were removed and replaced with the Cypress in conjunction with the tennis court construction in or about 2004. It is unclear what size trees were installed, but I observed large historical pruning wounds near the then apex of the trees, at about 2.3 metres above ground level, which was likely completed early in the applicants' occupation of their property. Mr Sefton suggested that this hard pruning was intended to increase the density of the hedge.
Mr Sefton, at point 18 of his submission, refutes the applicants' suggestion that "the hedge was 1.5 metres high when they purchased the property in 2008", on the basis that "this conflicts with the Council DA and Tree Planting Schedule which noted the Eastern Hedge was already over 3.5 metres high". This, however, fails to acknowledge and factor in the replacement of the old hedge with a new, young Cypress hedge, just a few years prior to the applicants' purchase of their property.
Over the early years of the applicants' occupation, the trees would have been younger, less dense and smaller, but their rate of growth would have been steadily increasing. This may explain why the applicants were satisfied with the pruning in the early years of their occupation, but less so in more recent years. Mr Sefton notes in his submission, that the hedge has been "pruned periodically", and said that this was "at least every two years" between 2008 and 2018. The applicants disputed that the frequency was as often as Mr Sefton claimed.
The hedge was pruned in October 2019, and the applicants submitted that the pruning height was much higher at that pruning than for the January 2021 works. Mr Sefton acknowledged that the previous pruning level was higher, and that he was hesitant to prune too hard, so as not to negatively impact the trees. He advised that the most recent pruning was much harder.
During their submissions at the onsite hearing, the applicants produced photographs which displayed the trees at a height about one metre higher than their current level. Mr Sefton objected to tabling of the photographs, as they were unexpected, and he had not had the opportunity to view them before the hearing. I cursorily viewed the photos, but they were not formally tendered to the Court. As to why they had not been made available to the respondent, nor to the Court, prior to the hearing, the applicants advised that the photographs were taken only after recent receipt of the respondents' submissions, so as to show the reality of the sunlight obstruction prior to the recent pruning.
Due to my familiarity with this species of tree, and the characteristics of the site, I do not need the photographs produced by the applicants to form or support my conclusions. Leyland Cypress grow rapidly and readily reach a height of 20 metres when left unpruned. They are ideal for use on rural properties but are renowned for causing obstruction of sunlight and views in urban areas. This hedge has reached a size and rate of growth where it will continue to shade windows for longer periods of the day if it is not maintained more regularly than has occurred in the past.
Mr Sefton, quite reasonably, relied on consent conditions attached to the granting of development consent D.A. 1502/03 to justify why the hedge should not be pruned below a height of 3.5 metres. Specifically he highlights that "the Tree Planting Schedule, which forms part of Construction Certificate 05/32 noted the existing screening as having a height of over 3.5 metres". He added that The Planting Schedule notes, "it is proposed that this planting be maintained, and intensified, where necessary, to maintain a uniform screen".
Though he referred to development consent D.A. 1502/03 and associated documents, both verbally and in writing, Mr Sefton did not tender these documents to the Court. He chose not to answer whether any of these documents addressed or prescribed a minimum height, below which the hedge should not be pruned.
I do not have the benefit of these documents, and thus I continue on the basis of what Mr Sefton said. I accept that orders to intervene with the hedge should preclude tree removal as this would be a breach of the development consent. Should it be appropriate, however, orders for pruning of the hedge to remedy a severe obstruction of sunlight, can still be made, provided the general D.A. requirements and objectives, as provided to me, are otherwise satisfied.
In assessing severity of impact, guidance is gained from criteria used by local government in Development Application (DA) assessment, whereby obstruction of direct sunlight to more than 50% of a living room window in mid-winter, for more than three hours between the hours of 9am and 3pm, is considered a threshold for intervention. Under the jurisdiction of the Act, only one window need be so impacted.
I accept Mr Sefton's position that the windows along the northern end of the applicants' dwelling's western side are service rooms and a bedroom where natural light is less critical. While the kitchen and informal living area are located at the north of the house, the lounge and music rooms facing west, at the southern end of the house, are both living areas. Window W5 is particularly relevant.
Even after the recent hard prune of January 2021, which apparently reduced the height of the hedge much more than most other previous prunings, the foliage forms a wall-like screen, which is causing a severe obstruction to sunlight on the applicants' western side windows. During winter, when the angle of the sun's path reduces solar access, and light and warmth from the sun is generally most valued, I am satisfied that the impact will be even more severe. The hedge denies the applicants of reasonable amenity and I am satisfied that the hedge is severely obstructing sunlight to, at least, window W5 of the applicant's dwelling. Section 14E(2)(a)(ii) of the Act is thus engaged.

Whether the severity of the obstruction outweighs other matters?

As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states: (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 the matters in s 14F is required: 1. The hedge is located in the respondents' property, parallel and close to the common boundary. 2. The trees were planted prior to occupation by the applicants in 2008. 3. The trees have grown to their current height of about 3.45 metres since that time. While in recent years the trees may have been pruned to a height of 3.5 to 4 metres, in the early years of the applicants' occupation they were much smaller and less dense, and were pruned as low as 2.3 metres at least once during this period. 4. The trees are likely protected by Ku-ring-gai Council's Tree Management controls. 5. The trees are protected by Ku-ring-gai Council's consent requirements attached to development consent D.A.1502/03. 6. The trees do not have any historical, cultural, social or scientific value that is worthy of consideration. 7. Being neither a flowering tree, nor endemic, the hedge is likely to make only a minor contribution to biodiversity. 8. The trees provide minor contribution to the natural landscape and scenic value of the land on which they are situated. 9. The trees are not of such a size, or in a sufficiently prominent location, to make a contribution to public amenity. 10. The trees may provide benefit with absorption of water, particularly after periods of heavy rainfall. 11. This species can normally be pruned relatively often to maintain height without unduly affecting their health or function. Such pruning will likely result in rapid regrowth of epicormic suckers, and will thus need to be repeated regularly to prevent ongoing obstruction of sunlight. The hedge is evergreen. 12. The hedge makes a significant contribution to providing privacy for the respondent. It also adds to garden design and landscaping value of the garden. 13. Foliage from some other species, the height of windows, and roof eaves also impact on obstruction of sunlight to the applicants' windows, but the hedge is the primary vector. 14. The respondents have not taken action in the past to rectify the obstruction, but have regularly requested pruning.

Conclusions

Given that the trees were planted in about 2004, and normally exhibit a period of relatively slow growth while they establish, it is likely that they were much smaller and less dense upon the applicants' occupation of their property in 2008. The heavy pruning to the top of the hedge, referred to earlier, likely occurred after 2008. I am thus satisfied that the sunlight obstruction has developed during the period of the applicants' occupation.
The foliage forms a wall-like screen, which I am satisfied, even after recent pruning, is currently causing a severe obstruction of sunlight to the applicants' western side windows. This impact will be worse during winter, when light and warmth from the sun is generally most valued.
Orders will be made for pruning, as sought by the applicants, but not to the 2.5 metre height that they requested, in recognition of the respondent's reasonable desire for privacy, and consideration of Council's consent requirements attached to development consent D.A.1502/03.
The trees are still relatively young and of a resilient species, so they should respond positively to pruning, particularly if kept well-watered during dry summers.
Regular pruning will be ordered to maintain the trees at the lower height. This shall be completed just before winter to allow maximum access to sunlight when it is needed most.
Debris will fall onto the applicants' property during works, and access may be required to carry out the pruning efficiently, so orders for access will be made.
Being spread along the western side of the applicants' dwelling, all trees in the hedge have the potential to contribute to severe sunlight obstruction. Therefore the following orders apply to the entire hedge.

Orders

The orders of the Court are: 1. The application is upheld. 2. The respondents shall engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune all (approximately 20) trees in the Leyland Cypress hedge to a height that does not exceed 3.25 metres above the existing ground level in the respondent's property, and to prune the back of the hedge to remove all foliage which grows beyond the common boundary into the applicants' property, and to remove any resulting debris from the applicants' property. 3. The works are to be done in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The works in order (2) are to be completed within 45 days of the date of these orders. 5. Upon receipt of no less than 24 hours' written notice, the applicants are to provide any access required for the works in order (2) during reasonable hours of the day. 6. Every year during April, beginning in 2022, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances, to carry out the works in order (2) in accordance with order (3). 7. Upon receipt of no less than 24 hours' written notice each year, the applicants are to provide any access required for the works in order (6) during reasonable hours of the day.

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: 21 April 2021

(2006) 144 LGERA 289

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Judgment (11 paragraphs)

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