Hollings v Owners Corporation Strata Plan 73586

Land and Environment Court (NSW)|2023-04-17

Background

COMMISSIONER: Carol Hollings (the applicant) owns two adjoining residential properties in Cromer. She lives in one and rents out the other. To her west is a block of residential units, on property owned by The Owners - Strata Plan 73586 (the respondent). The respondent shares a common boundary with both of the applicant's properties, and has a hedge of Mock Orange (Murraya paniculata) growing along their side of the boundary. The trees reach above, and extend over, the common boundary fence. The 1.8-metre timber paling fence has failed alongside the dwelling occupied by Ms Hollings, leaning significantly into her property, and leans a little along the boundary of her second property. The respondent's land is higher than the applicant's, especially alongside the property occupied by Ms Hollings. The respondent's higher land is supported by a timber sleeper retaining wall, located on the respondent's land, just inside the boundary. The retaining wall is failing and leans eastward towards the applicant's property, and so pushes against the boundary fence.
Ms Hollings wants the retaining wall rebuilt, the fence replaced, and the hedge removed. The respondent offered to replace the retaining wall and the fence, but says they were not granted access to do so. Subsequently, Ms Hollings filed a tree dispute application with this Court. Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), she seeks orders for the respondent to rectify the retaining wall and replace the fence. Pursuant to s 14B (Pt 2A) of the Trees Act, she seeks orders for the respondent to remove all trees in the hedge.
The respondent wishes to rectify the retaining wall and replace the fence. The respondent disputes that the hedge needs to be removed, but proposes that they prune all trees in the hedge to reduce their height.

The trees

The respondent's eastern boundary is approximately 37 metres long, 28 metres of which is shared with the applicant's rented property, and 9 metres with the property occupied by the applicant. Numerous Mock Orange plants form a hedge along the entire length of this boundary. The respondent has continued this planting along their northern boundary also. Trees in the eastern boundary hedge are 3.5 metres tall or more. They form a dense visual screen above the paling fence along this boundary. Above the fence, the trees' branches and foliage extend into the applicant's properties. The trees were planted around 2005, when the respondent's property was developed.

Reasonable effort

Under both Pt 2 and Pt 2A of the Trees Act, the Court must be satisfied, before making any orders, that the applicant has made a reasonable effort to reach agreement with the trees' owner. Given that the respondent has offered to carry out works that might resolve at least part of the dispute, I might consider that, by refusing the respondent's offer and pressing on with this application, the applicant has not made a reasonable effort. However, the minds of humans are complex, capable of fixation on the mundane as much as contemplation of the extraordinary. The applicant, or her partner Mr Henderson, was not satisfied with the respondent's proposed solution, wanting further conditions relating to the retaining wall's construction. Ms Hollings has engaged legal representation and negotiated with the respondent at some length prior to making this application. I am satisfied that she made a reasonable effort.

Part 2 application - retaining wall and fence

The timber retaining wall leans to the east. It is not clear whether roots of trees in the hedge have pushed against it, or whether it has been pushed by the weight of soil and hydrostatic pressure. Most likely it is a combination of both. There is no dispute that the wall was constructed inadequately for its purpose, nor that it is failing, nor that it needs to be replaced. The respondent intends to replace the wall. The applicant wants orders for the wall to be constructed to a certain standard. I cannot see that I can make orders for the retaining wall, as it is the respondent's property. In matters of property damage, the Court's jurisdiction is limited at s 10(1)(a) of the Trees Act to damage caused to the applicant's property.
The timber paling fence alongside Ms Hollings' dwelling has partially collapsed. Alongside her rented dwelling the fence leans slightly, but has not collapsed. Ms Hollings wants the entire 37 metres of fence replaced. Mr Rolon, for the respondent, argued that discussions prior to the hearing were limited to the section of fence alongside the property occupied by Ms Hollings.
The fence has been pushed by the retaining wall, rather than directly by the trees' roots or other parts of the trees. To resolve this issue, the Court would need to determine whether the respondent's retaining wall, possibly pushed by tree roots, displacing the common boundary fence, would satisfy the test at s 10(2)(a): have the trees caused damage to the boundary fence?
After I explained the limited jurisdiction of the Trees Act when it comes to orders applying to the respondent's property, being the retaining wall, the hearing was adjourned temporarily while the parties came to their own agreement regarding the retaining wall and the fence. The applicant no longer pressed for any orders under her Pt 2 application. The Pt 2 application will therefore be dismissed.

Part 2A application - obstruction of sunlight

Mr Forster, for the applicant, took the Court to rooms of both of the applicant's dwellings affected by the hedge. Both dwellings are separated from their western boundaries by only a narrow path. Branches and foliage of the trees extend above the fence and across the boundary, obstructing some afternoon sunlight to the west-facing windows of: a bedroom in Ms Hollings' dwelling, and a lounge and a bedroom in the rented dwelling. Mr Forster pointed out the limited natural light available within the rooms. Mr Rolon argued that sunlight would only be available for a very short period due to the proximity of the fence and the respondent's building, as well as the applicant's own eaves. I accept that these other built elements obstruct sunlight to these windows. Nevertheless, the planning controls that limit fence height and building setbacks aim, among other objectives, to limit overshadowing. The limited period of sunlight available to these windows is valued by the occupants. Having viewed the hedge's impact on sunlight availability here, I am satisfied that trees in the hedge cause a severe obstruction of sunlight to windows of both dwellings. It follows, at s 14E(2)(a)(i), that the Court can make orders. The Court must also find that reasons to interfere with the trees outweigh those against doing so (s 14E(2)(b)). Before making orders the Court must consider a range of matters set out as s 14F, those relevant being discussed below.

Matters to be considered by the Court

The trees are alongside the common boundary and close to the applicant's two dwellings. Due to the nature of the planting, the respondent can only access and prune the top of the hedge and its western face. The onus of hedging 37 metres of branches and foliage overhanging the common boundary falls to the applicant.
The species of tree is tolerant of heavy pruning and can be easily maintained as a hedge. The respondent has hedged it in the past. The respondent proposes reducing the trees' heights by 1.5 metres along the common boundary with Ms Hollings, and 0.5 meters along the common boundary of her rented property. Mr Rolon clarified during the hearing that this would result in all trees in the hedge being reduced to approximately 2 metres in height. I am of the opinion that the trees would tolerate this relatively severe pruning and continue to form a functional hedge.
The trees have little value to the broader community or environment, although they contribute ecosystem services such as cooling, pollution removal and reduction of water run-off.
The hedge provides privacy between the properties. Mr Rolon pointed out that people in the respondent's property would be able to see into windows of both of the applicant's dwellings were it not for the hedge.
Despite the limited sunlight otherwise available to the applicant's windows due to other elements, I found above that trees in the hedge cause a severe obstruction of sunlight to her windows. Reducing the trees to 2 metres in height would leave less foliage above the boundary fence, significantly reducing the trees' obstruction of sunlight, such that it should no longer be severe. This would also reduce the extent of pruning required by the applicant on her side of the hedge.
Having considered the above matters, I find that the sunlight obstruction warrants remedy, but removing the trees is unnecessary. Sunlight access can be sufficiently restored by pruning the hedge.
The dwelling occupied by Ms Hollings was constructed in 1998. The trees were planted in or around 2005. Ms Hollings lost access to sunlight she previously enjoyed. Her rented dwelling was constructed in or around 2014, by which time the trees were already above eave height, as shown in photos in Exhibit 1. That dwelling has not lost sunlight access; rather it seems those windows have never enjoyed greater sunlight access. The Court has consistently taken the approach that the jurisdiction of Pt 2A of the Trees Act is limited to situations where someone has lost access to sunlight or views: see McDougall v Philip [2011] NSWLEC 1280 at [20]-[24]. Here, I might consider that only those trees affecting Ms Hollings' bedroom window should be pruned. However, it is also reasonable to consider the amenity of the hedge in its entirety (Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215), and to maintain a uniform height along the hedge. During the hearing, the respondent suggested a height of 2 metres, which is reasonable. The trees' height is to be measured above ground level at the base of each tree. I acknowledge that the trees will appear taller than 2 metres from the applicant's land, as the respondent's land is higher. The respondent proposed quarterly pruning.

Orders

As a result of the foregoing, 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, the respondent is to engage a suitably experienced and insured contractor to reduce all trees in the hedge along their eastern boundary to a height no greater than 2.0 m The works are to be done in accordance with Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 4. The respondent is then to repeat the pruning in order (3) at quarterly intervals, that is during each August, November, February, and May. 5. The applicant is to allow any access necessary for the works to be completed, including clean-up of fallen branches.

Amendments 03 August 2023 - Amendment to coversheet 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: 03 August 2023

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