Hanna v Hampton

Land and Environment Court (NSW)|2023-11-21

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

Background

COMMISSIONER: Peter Hanna (the applicant) has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders relating to trees on a neighbouring Ropes Crossing property belonging to Alana and Leon Hampton (the respondents).
A row of 21 lilly pillies (Syzygium sp.) (the trees) grows on the Hamptons' property along the common boundary shared with Mr Hanna. Pursuant to s 7 of the Trees Act, Mr Hanna seeks to prevent damage to his property and to prevent injury. Pursuant to s 14B of the Trees Act, he seeks to remedy the sunlight obstruction caused by the trees.
The hearing took place onsite, allowing the Court to inspect the trees and both properties. The Court went to the applicant's property to inspect the trees' impacts on sunlight. Privacy issues were observed at both properties.

The Pt 2 application

Before making orders under Pt 2 of the Trees Act, the Court must be satisfied, at s 10(2), that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or are likely to cause injury to a person.
The trees' branches and foliage extend across the boundary, overhanging Mr Hanna's driveway. Mr Hanna submitted that leaves and other debris falling from the trees build up on the driveway, resulting in staining of the surface and blocking of drains. When his boat was parked here, it was stained and developed mould. Mr Hanna has moved his boat to another property, but submitted that he should be able to use his driveway for its purpose. He stated that the respondents should be responsible for maintaining their hedge.
Ms Russell-Matthews, for the respondents, submitted that the driveway does not appear stained. She pointed out that leaves might also come from the maple tree at the back of Mr Hanna's property, the maple being deciduous, while the lilly pillies are evergreen and lose fewer leaves. She submitted that Mr Hanna could use a blower to clean his driveway.
I did not observe any significant damage to Mr Hanna's driveway. Leaves that had built up on the driveway, along the boundary fence, appeared to be mostly from the lilly pillies. If they cause staining, this could be avoided by regular maintenance, as per the tree dispute principle at [20] in Barker v Kyriakides [2007] NSWLEC 292: "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, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
On the issue of mould, the principle above was extended at [14] in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 to include "…the cleaning of such surfaces as paving and paths and the like."
Mr Hanna's application also refers to the risk of injury from low branches to people walking on his driveway. Branches might contact people's eyes or faces. In my mind, Mr Hanna could easily prevent this by removing low branches, as he is entitled to do, and does not warrant any orders from the Court.
On the basis of the above, the Pt 2 application will be refused.

The Pt 2A application

The key jurisdictional tests for the Pt 2A application are found at s 14E(2) of the Trees Act: 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, 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.
The trees are 3-4 metres tall, with branches extending across the boundary towards Mr Hanna's dwelling, which is separated from the boundary by his 3-metre-wide driveway. The trees are planted at close spacings, roughly a metre apart, around 400 mm from the boundary, forming a dense screen along the boundary. On ground level, Mr Hanna's dwelling has a laundry door and a bedroom window facing east toward the hedge. Mr Hanna submitted that he uses the bedroom as a study, where he works from home. He submitted that most available sunlight is obstructed by the hedge. I accept this to be the case, as a result not only of the trees' height, but also their spread across the boundary towards his dwelling.
The Hamptons submitted that Mr Hanna could not be so concerned about sunlight, or he would prune his maple tree. However, that tree is to the south of his dwelling and obstructs no sunlight to these windows. While it may limit light to the kitchen window at the back of the property, its impact on direct sunlight would be minimal.
The east-facing bedroom, or study, window can only receive morning sunlight, most of which is now obstructed by the trees. I find this is a severe obstruction of sunlight.
Before making any orders, I am required to consider the matters at s 14F of the Trees Act.

Consideration of other matters

The trees are close to the boundary. They overhang the boundary, with branches extending towards Mr Hanna's dwelling.
The Hamptons planted the trees. They value the trees' benefits, particularly the privacy provided by the visual screen, the importance of which is perhaps elevated by the nature of the relationship between these neighbours. The trees also reduce the reflection of sunlight from Mr Hanna's two-storey dwelling onto the Hampton's dwelling.
The sunlight obstruction can be reduced significantly without a loss of the trees' benefits. Maintaining the trees around a height of 3 metres, and pruning the hedge's western face at the boundary, would restore most of Mr Hanna's sunlight while maintaining visual screening between the properties. I noted that shorter parts of the hedge, currently just over 3 metres tall, provide sufficient screening. The Hamptons argued that the trees need to be 3.5-4 metres tall to screen, from all parts of their property, Mr Hanna's security cameras that are attached to his eaves. Mr Hanna pointed out that his security cameras are pointed along his driveway, not towards the respondents. I find the Hamptons' expectations regarding complete privacy are perhaps unfounded, and do not outweigh the advantages of restoring sunlight to Mr Hanna's windows.
In Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462, the Court considered the maintenance required on the applicant's side of a hedge planted on the respondent's property by, and for the advantage of, the respondent. At [104], the Court found that it might be appropriate for the respondent to maintain the applicant's side of the hedge. In the case before me, it is the Hamptons who planted the hedge for their own benefit. They planted it along their western boundary, without room to maintain its western face from within their property. Their contractor pruned the western face several times, but they say this is no longer possible given the nature of the relationship with their neighbour. I find it is reasonable for the respondents to maintain all sides of their hedge, and will order so. This would be best done by a contractor, with the respondents to give the applicant reasonable notice, and the applicant to allow access to his property for the works.

Orders

The Court orders: 1. The Pt 2 application is refused. 2. The Pt 2A application is granted to the extent of the following orders. 3. Within 30 days of the date of these Orders, and then in April and November of every year, the respondents are to engage and pay for a suitably qualified contractor to prune the lilly pilly trees forming a hedge along their western boundary so that: 1. the top of the hedge is no more than 3.2 metres above ground level, measured from the ground at the base of the bamboo; and 2. the face of the hedge on the Applicants' side is pruned to the boundary. 1. The respondents are to give the applicant 7 days' notice of each pruning event. 2. The applicant must arrange all access required to his property for the respondents' contractors to carry out the works ordered above. 3. The exhibits are returned, except for A and 1.

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: 06 December 2023

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