Hendry & anor v Olsson & anor [2010] NSWLEC 1302 | Case summary

1 SENIOR COMMISSIONER: Mr and Mrs Hendry live in a property that is to the south of the property owned by Mr and Mrs Olsson. Mr and Mrs Hendry's property has, for approximately seventy per cent of its boundary (comprising the more eastern elements of their boundary) a common boundary with part of the southern boundary of the Olssons' property. Although not oriented in a precisely north/south fashion, Mr and Mrs Hendry's allotment is generally so oriented so that the Hendrys' property is to the north of their property. 2 Mr and Mrs Hendry have made two applications pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act), which applications relate to trees located on the Olssons' land. The first application is an application made pursuant to s 7 of the Act and the second is an application made pursuant to s 14B of the Act. Each of the applications is made with respect to seven trees located on the Olssons' property. 3 The first application under s 7 of the Act alleges that the combined effect of the trees on the Olssons' property (by shading some steps and portion of a paved area under a pergola) cause a risk of injury to the Hendrys and that that satisfies the test under s 10(2)(b) of the Act to give us jurisdiction to consider other matters. 4 The second element that they raise is the deposition of [primarily] seeds but other detritus causing gutter blockages and nuisance caused by the deposition and the necessity to clean up the deposition of material on their property, that coming primarily from the more southern of the two Cocos palms located on the Olssons' property. 5 The application that is made under s 14B of the Act is that the trees on the Olssons' property, either together or in some subsidiary combinations, constitute a hedge or hedges that cause a severe obstruction of sunlight to two windows in the Hendrys' property - they comprising windows to rooms used as bedrooms, one being to the eastern end of the northern face of their dwelling and the second being to the western end of the northern face of their dwelling. 6 It is necessary, therefore, for us to determine a number of preliminary jurisdictional issues in each of the applications. Having determined those jurisdictional issues, if necessary then to proceed to deal with discretionary matters that arise under either Part 2 or Part 2A of the Act. 7 We turn first to matters under Part 2. 8 We have concluded that for the purposes of our decision it is appropriate, given the conclusion that we have reached, to take the applicants' case at its highest with respect to the question of risk of injury or damage to their property and to assume, for the purposes of this discussion, that the jurisdictional question of risk and damage has been satisfied. 9 We have taken this course as we are of the view that, even if the jurisdictional question is satisfied as we have assumed, the application pursuant to Part 2 of the Act must necessarily be dismissed as a matter of discretion. 10 We have reached that conclusion concerning the two separate elements of their claim under Part 2 for the following reasons: 11 With respect to the deposition of seeds, leaves and other detritus from the trees located on the Olssons' property onto the Hendrys' property, the Court published a tree dispute principle in the case of Barker v Kyriakides [2007] NSWLEC 292 that says that, for those persons who have the environmental and aesthetic benefits of trees in urban areas, it is appropriate to expect and require that ordinary reasonable maintenance will be undertaken to deal with the deposition of fruit, nuts, berries, leaves and the like from such trees. We adopt and apply that principle here. 12 Second, with respect to the suggestion that there is mould and slime and the like created as a consequence of the shading of the steps and under pergola's paved area, we are satisfied that two matters are relevant to our consideration. 13 First, we could not be satisfied, as a matter of fact that, assuming that such mould and slime were to be present [which was not obvious on the site inspection this morning], the total cause of such incidence was the trees on the Olssons' property rather than a significant contribution being made by the shading by the pergola structure itself and its attendant shade cloth. 14 Even if we were to conclude that the pergola and the shade cloth made no contribution (which we do not), we are satisfied that we should indicate that a proper extension of the tree dispute principle enunciated in Barker v Kyriakidis is a supplementary principle that, for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like. 15 Therefore, taking the applicants' case at is highest and assuming that the jurisdictional test is satisfied with respect to the application pursuant to Part 2, we would, for the reasons we have enunciated, as a matter of discretion, dismiss that application. 16 We now turn to the application that is made pursuant to Part 2A of the Act. That is the claim that the trees, either together or in separate groupings, constitute a hedge or hedges that meet the tests in s 14A, that subsequently meet the test in s 14B and having regard to the further matter of satisfaction required by s 14E(2) warrant the making of an order. 17 For this application, it is necessary for us to consider all of the seven trees that are the subject of the application. 18 The tests that we are required to consider under s 14A(1) are: o whether any or all of these trees constitute one or more groups of two trees; o whether, if there are such groups, those trees were planted so as to form a hedge; and o whether they rise to a height of at least 2.5 metres above existing ground level and the like. 19 These comprise the three preliminary tests under s 14A(1) of the Act. 20 We now proceed to go through each of the relevant trees or groups of trees on the Olssons' property for the purposes of making that determination. 21 We are satisfied with respect to trees T1 and T2, they being two Cocos Island palms located in the south-western corner of the Olssons' property, first that there are two of them; secondly, that they were planted; third, that for the purposes of s 14A(1)(a) they form a hedge within the meaning that we should ascribe to it under the Act and fourthly that they rise to a height of at least 2.5 metres above existing ground level. Therefore, as a group of trees, Tree 1 and Tree 2 satisfy the jurisdictional tests in s 14A(1)(a). We will return to other tests and matters of consideration relating to those trees shortly. 22 Tree 3 is a Firewheel tree planted some distance away from the Cocos Island palms and on a different orientation to the axis upon which the two large palms and one small palm tree within that group are located. When fully grown, it will form a tree of differing configuration, vegetation type and presentation to Trees 1 and 2. We are satisfied that it is not planted as part of a group with Tree 1 and Tree 2 and therefore it does not form part of the hedge that is comprised by Trees 1 and 2. 23 Trees 4 and 5 are eucalypts that are planted in close proximity to each other, although they are of different species. For reasons into which we need not enquire, Tree 4, a flowering gum, seems to be in extremely poor condition and may not have a significant safe useful life expectancy. Nonetheless, that tree appeared to us to be a tree that was planted, planted in a group with Tree 5, forms a hedge with Tree 5 and, at least in its present case, has reached a height of 2.5 metres (but given our observation of its condition is unlikely to reach any further height of any further significance before it is needed to be removed). However, we are satisfied that Trees 4 and 5 separately satisfy the definition of a hedge. We are also satisfied, for the reasons we have earlier enunciated with respect to Tree 3, that Tree 3 does not form a hedge with Trees 4 and 5. 24 The consequence of these conclusions is that there are two separate hedges located at, or in the vicinity, of the boundary between the Hendry and Olsson properties. 25 We now turn to Trees 6 and 7. These trees are substantial eucalypts, some twenty metres or more in height. Mr and Mrs Olsson in their submissions observe that the trees were in existence at the time they purchased their property. Mr and Mrs Hendry's evidence confirms this and indicates that those trees were some eight metres in height at the time they purchased their property some time before Mr and Mrs Olsson arrived. Mr and Mrs Olsson asked us to observe, as we did during the course of our walk between the two properties, that these trees were consistent with the vegetation on the nearby drainage reserve. Mr and Mrs Olsson submitted in their evidence that we should conclude that those trees were part of the remnant native vegetation in the area. 26 First, we observe that we cannot be satisfied, on the evidence that is presently before us, that Trees 6 and 7 were planted as opposed to being self sown, whether or not they are part of the remnant native vegetation. Second, we observe that their consistency with the remnant vegetation in the area makes it sufficiently probable (to the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that we should conclude on the balance of probabilities that those trees are part of the remnant native vegetation in the area. 27 We are therefore unable to be satisfied that Trees 6 and 7 were planted so as to form a hedge and therefore they do not fall within our jurisdiction under Part 2A of the Act. 28 We therefore turn to consider what, if anything, we should conclude with respect to the shading impact on each of the windows on the Hendry property by each of the two separate hedges that we have concluded exist on the Olsson property. 29 We observe, at this time, that, although Mr and Mrs Hendry raise the question of the need for them to have relocated their proposed solar panels to a different area of their roof as a consequence of overshadowing, that that is not a matter that falls within our jurisdiction under the legislation - as the Act specifically makes it clear (in s 14B) that the obstruction is to be severe obstruction of sunlight to a window of a dwelling and "window" is defined as constituting a glass sliding door, a door with a window, a skylight and any other similar thing as being included within the definition. 30 There is no way, in our view, that solar panels could be brought within that definition and therefore any matters concerning the Hendrys' solar panels are outside the jurisdiction of the Court. 31 We turn first to deal with the question of shading to the more eastern of the two windows. We have a series of photographs in evidence that show at differing hours of the day differing days of the year provided by each of the parties the extent of overshadowing of those windows. The photographs are taken from differing locations, including satellite imagery. 32 It is fair to make the following observations with respect to the shading of the more eastern of the windows - that is the window identified as W2 on the diagram produced by Mr and Mrs Hendry. First, we observe that there is, immediately adjacent to that window, a pergola with a sunshade (a shade cloth) on top and, second, with a wisteria plant growing over it - wisteria which would, at least in summer when it was in leaf, provide shade to that area. 33 However, it is clear from the photographs that a significant element of the shading of window W2 is provided by the pergola and shade cloth structure and not by any trees. 34 Whilst the trees may, themselves, at varying hours of the day overshadow the shade cloth the predominant impact on sunlight to the window is the shade cloth itself. 35 Further, we observe, with respect to that window, that the shading that is provided by the trees identified by us as a hedge comprising Trees 4 and 5 - a hedge will which only continue to exist whilst ever Tree 4 remains in the ground. So, when Tree 4 demises, as would appear to be inevitably the case, if it is removed and not replaced, the remaining tree will not constitute a hedge. In our view that overshadowing is predominated by the shadowing that comes from the much significantly higher trees to the north-east, being Trees 6 and 7, which we have held do not constitute a hedge. 36 We are therefore satisfied that a combination of Trees 6 and 7 and the shade cloth removes any possibility of us concluding that the hedge comprising Trees 4 and 5 causes a severe obstruction of sunlight to that window. 37 With respect to the overshading of that window that might be provided in the late afternoon or evening by Trees 1 and 2, a similar position applies concerning the contribution of shading by those trees compared to the shading by the sun cloth. 38 We are satisfied that there is shading caused by the trees that form the second of the hedges, that is Trees 1 and 2, but that the overshadowing provided by those trees is not to be accumulated with the overshadowing provided by the shade cloth or by Trees 6 and 7 and that individually Trees 1 and 2 as a hedge do not provide a severe obstruction of sunlight to that window and that the application is not able to be sustained with respect to them. 39 A similar position applies with respect to window W1. Although W 1 is not impacted by the shade cloth, it is clear that, at least during the morning hours, such overshadowing as takes place of it comes from a combination of the eaves of the applicants' property and from Trees 6 and 7, being trees that do not constitute a hedge. 40 Whilst in the middle of the day there will be overshadowing of window W1 as a consequence of that window being almost due south of Trees 1 and 2, that shadowing will only occur during a small portion of the day and is not to be accumulated with the shadowing that might fall from Trees 6 and 7 or the eaves of the house or any contribution to overshadowing at any time of the year that might come from deciduous or other trees either on the applicants' property or on the property adjacent to the west of Mr and Mrs Olsson's property. The shadowing from this hedge of W1 cannot be regarded as severe. 41 We are therefore satisfied with respect to all elements of the application pursuant to Part 2A that, although there are hedges that are within the jurisdiction of the Court, there is no obstruction of sunlight to either window on the Hendrys' property that properly meets the test of a severe obstruction of sunlight by a hedge. 42 As a consequence of all of that, the applications under each Part of the Act are dismissed.

Hendry & anor v Olsson & anor

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