Ingham v Pettigrew

Land and Environment Court (NSW)|2015-12-01|Before: Mr J

Background

On the outskirts of Blackheath, abutting Blue Mountains National Park, residents live on large lots in a leafy environment. Garden landscapes comprise a mixture of native and exotic plants offset by the native bushland of the neighbouring national park.
Ms Ingham ('the applicant') has owned her property since 2001. It is a long narrow property with her dwelling set back from the road frontage to the south and a roughly northerly outlook toward the national park from the rear of her dwelling. Here at the back of her dwelling are her living room and kitchen, with large windows, and an outdoor raised deck. She says the dwelling was designed to take advantage of the northerly aspect, maximising access to sunlight and available views. Photos taken circa 2000 (the property was owned by her family before Ms Ingham became the sole owner) show an open outlook from the rear of her dwelling and afternoon sunlight with its accompanying long shadows stretching across the northern end of the living room.

The framework for deciding these matters under the Trees Act

Part 2A of the Trees Act, at s 14B, provides an owner of land with a means for seeking remedy in relation to neighbouring trees obstructing either sunlight to windows of a dwelling or views from a dwelling.
There is no dispute that the trees in each hedge were planted so as to form a hedge and that they are more than 2.5 metres tall (s 14A(1)).
The Trees Act applies to trees on land of various designated zones, including 'residential', 'rural-residential', 'village' and 'township' among others (s 4(1)(a)) but Part 2A does not apply to trees on land designated as a 'rural-residential' zone (s 14A(2)(a)). The properties are designated as 'Environmental Management' zones (DLEP 2013), replacing the earlier 'Bushland Conservation' zone that applied here. Mr Carolan, counsel for Mr Pettigrew, suggested that as the land was not zoned 'residential' (or other zones mentioned at s 4(1)(a)) the Court has no jurisdiction over these trees. My understanding is that the Environmental Management zone, and the Bushland Conservation zone that it replaces, fall within a range of residential zones within the Blue Mountains Local Environmental Plans (LEP) or Draft LEP. Certainly there was no evidence adduced to indicate otherwise.
It is apparent that Ms Ingham 'has made a reasonable effort to reach agreement' (s 14E(1)(a)) with her neighbours.
Therefore the contention here in both matters is whether the trees concerned are severely obstructing: (i) sunlight to Ms Ingham's windows; or (ii) views from her dwelling (s 14(2)(a)). If I find that the trees cause such an obstruction, there is a range of matters at s 14F of the Trees Act to be considered, before I determine if the applicant's interests in addressing the severity and nature of the obstruction outweigh any reasons there may be to avoid interfering with the trees. Considerations include the trees' landscape and environmental values and their contribution to privacy and screening.
Apart from the general background and the framework of the Trees Act outlined above, each matter was considered separately.

Does the hedge severely obstruct sunlight or views?

The Pettigrew hedge begins only two metres or so from Ms Ingham's dwelling. Trees in the hedge have not been pruned and are approximately 16 metres tall. The 76 trees are closely planted in two parallel rows. The boundary fence is not aligned on the common boundary as surveyed, so trees are closer to the boundary than they appear, especially at the hedge's northern end. Branches extend a few metres into the Ingham property.
Mr Pettigrew's position is that the trees do not cause a severe obstruction of sunlight or views.

Sunlight

Ms Ingham says the Pettigrew hedge obstructs sunlight to her kitchen and living room windows during winter afternoons. She says this is the season when sunlight is most appreciated and the dwelling was designed to take advantage of winter sunlight. Afternoon sunlight was not blocked by the Pettigrew hedge when she first owned the property.
Mr Carolan used a diagram prepared by Mr Starr (Exhibit 5) to demonstrate that the difference between shadowing to Ms Ingham's windows caused by the trees at their current height and shadowing if the trees are lopped to 3.5 metres would be approximately one hour of sunlight in the afternoon. Ms Ingham's kitchen window currently becomes shaded at about 2:00 pm and Mr Starr's diagram shows that it would become shaded at about 3:00 pm if the trees were 3.5 metres tall. However Mr Starr's diagram does not explain the methodology he used for the lines he has drawn on the plan. When asked why the difference in shadow height was not proportional to the hypothetical reduction in tree height, as I observed, he was not sure at first if this was the case, but once he accepted that it was the case he suggested it was due to the greater canopy width of the trees at the reduced height. I am not convinced that his methodology was so sophisticated to allow for this, but even if it was it shows he has assumed height reduction pruning without pruning of branches extending over the common boundary. This would be a reason to reduce the trees' spread to the east as well as their height. Secondly, Mr Carolan's suggestion that a one hour loss of sunlight is not severe misses the point. The jurisdictional test is based on the existing obstruction of sunlight caused by the trees, not a comparison of the current obstruction with a hypothetical pruning scenario, even if that scenario is proposed by the applicant. Shadow diagrams show that Ms Ingham's kitchen window becomes shaded by the trees by 2:00 pm, and her living room windows soon after. The shadowing continues for the remainder of the day. I accept her submission that this is a severe obstruction of sunlight as it affects her enjoyment of her property during the winter months when access to sunlight is most appreciated. Mr Carolan's argument, if anything, suggests that the trees need to be at a lower height than the suggested 3.6 metres to satisfactorily restore Ms Ingham's access to afternoon sunlight.
I find that trees in the southern section of the Pettigrew hedge cause a severe obstruction of sunlight to Ms Ingham's dwelling. Reducing trees in this section of the hedge to 3.6 metres may be insufficient to remedy this obstruction so a greater reduction in height would be required.

Views

Ms Ingham says the Pettigrew hedge obstructs views from her living room, her kitchen and her large timber deck at the rear of the dwelling. Views are of the broad landscape, including sky, distant trees and the Pettigrew property. Ms Ingham says she especially used to enjoy views to her west of the sunset, but sunset views are no longer available.
Trees in the Pettigrew hedge are planted closely forming a dense screen with similar properties to a solid wall - nothing can be seen through it. This is different to the effect of scattered trees with open canopies that allow a filtered outlook to the landscape beyond. Although the Pettigrew hedge obstructs only part of the view from Ms Ingham's rear deck, it significantly changes the outlook so that instead of having a view of the broad landscape, Ms Ingham's view is restricted to a narrow view down toward the rear of her property. This is not an inner urban environment, where views are inherently more restricted. It seems reasonable for Ms Ingham to expect broader views, especially when such a view was enjoyed earlier.
Mr Carolan suggests that Ms Ingham's outlook is only to her north, a view not affected by the Pettigrew hedge. He says her own trees partly obstruct that northern view. However I found that the view from Ms Ingham's windows is potentially much broader than the narrow northern view she currently has and that the Pettigrew hedge does severely limit that view. The view from her rear deck is potentially of the broader landscape and would take in the western sky with its sunsets were it not for the Pettigrew hedge. Mr Carolan argues that the hedge along Mr Pettigrew's western boundary would obstruct the same view. I find that because of its greater distance from Ms Ingham's dwelling the western hedge obstructs a much smaller and lower portion of the potential view. That hedge is not a part of this application, but if in future Ms Ingham were to find it caused a severe obstruction of her views she could of course make a further application to the Court.
Due to the height and density of the trees in the Pettigrew hedge, and their proximity to the Ingham dwelling, I find that they cause a severe obstruction of views from Ms Ingham's dwelling. Trees in the southern section of the hedge have the greatest impact, but to some extent it is also the hedge as a single unit that creates the sense of a limited outlook.

Consideration of other matters

Of the list of matters to be considered at s 14F of the Trees Act, the most relevant are discussed below.
The trees are alongside the boundary and their foliage overhangs the Ingham property. At its closest the hedge is approximately two metres from the Ingham dwelling.
The view is across the side boundary. In Tenacity Consulting v Waringah [2004] NSWLEC 140 Roseth SC, discussing principles of view sharing, stated at (27): For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. …The expectation to retain side views and sitting views is often unrealistic.
Roseth SC was not definitive, using language such as "more difficult than" and "often unrealistic". I accept that in a denser urban environment such expectations might be unrealistic, but in the more bucolic landscape found on the outskirts of Blackheath the expectation to retain a broad landscape view across a side boundary seems entirely reasonable, especially when the side boundary is so long and extends well beyond any dwellings.
The trees were planted after the dwelling was built on what is now Ms Ingham's property but before she became its owner. They were less than 3 metres tall when she first owned the property and did not severely obstruct the view.
The trees do not have historic or cultural value. They do not provide any significant positive contribution to the ecosystem nor to biodiversity.
The trees contribute to the scenic value of Mr Pettigrew's property but have no great value to public amenity. Mr Carolan pointed out that Mr Pettigrew has two such hedges, one along each of his side boundaries, and that removing one of them will unbalance the landscape and diminish its amenity. I accept this but find Ms Ingham's reasons for restoring her view outweigh the loss of amenity.
There is no evidence that the trees have any impact on soil stability, the water table or other natural features.
Pruning as sought by Ms Ingham would have some detrimental effect on the trees. Mr Draper stated that, although trees in the Pettigrew hedge are much larger than those in the other hedge, they would respond over time. Mr Carolan pointed out that reducing the height of the trees to 3.6 metres would be contrary to the guidelines of AS4373 Pruning of Amenity Trees. Mr Draper acknowledged this to be the case and also acknowledged that the impact of topping the trees and pruning them to the boundary would be severe and could kill some trees. I accept that the proposed pruning would severely affect these trees. They have not been pruned before. Reducing them to 3.6 metres would leave little foliage and the trees would appear woody and unattractive. The guidelines of AS4373 would not prevent orders for pruning as the standard does not address hedging. Hedging is a common horticultural practice. The species planted here is suited to hedging and commonly planted to be hedged. Had the trees been pruned regularly and maintained at a smaller size, the impacts of the proposed pruning may not be severe. Mr Pettigrew did not indicate a preference for pruning the trees or removing them and replacing them. In my view, the impacts of pruning trees at the southern end of the hedge to restore views and sunlight would be so severe that their removal and replacement is to be preferred. The hedge is a single element in the landscape and treatment for one part of it will affect the remainder, aesthetically and physically.
There are few side windows in the Pettigrew dwelling facing the Ingham dwelling. Privacy does not seem to be a major issue but could be maintained with a lower hedge that would restore Ms Ingham's landscape views.
In the absence of the hedge, other trees including the western Pettigrew hedge may contribute to the view obstruction, but they are more distant and their obstruction is not as significant.
The trees are evergreen and the view obstruction is year-round.
The view includes the natural landscape, trees, cleared land and sky.
The trees have never been pruned despite requests from Ms Ingham, who has offered in the past to contribute to the cost of pruning the trees. In fact, she says her offer to contribute still stands but I see no reason for the costs to be shared between the parties when such an offer has been refused by Mr Pettigrew in the past. Mr Pettigrew had the capacity to take earlier action that would have avoided the present predicament.
The hedge affects Ms Ingham's dwelling. She has lost views from her living room, kitchen and rear deck. These living areas are likely to be used during the day, when the view can be seen. The deck too is most likely to be used during hours of the day when the view would be enjoyed.
I accept that the view obstruction caused by the Pettigrew hedge severely affects Ms Ingham's enjoyment of her property. The jurisdiction was enacted to address situations such as this. As permitted by s 34(2) of the Interpretation Act 1987, for assistance in interpreting "severe obstruction" I refer here to the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW). On page 39 the Review expresses the intended scope of Part 2A of the Trees Act (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).
Ms Ingham stands to regain access to sunlight and views that she previously enjoyed, while Mr Pettigrew stands to lose significant amenity. However the impact to Mr Pettigrew would have been significantly less had the trees been maintained at a lower height from a young age, which seems an entirely reasonable expectation given the hedge's proximity to Ms Ingham's dwelling. Pruning or removing the trees would also come at some expense. However the advantages to Ms Ingham seem greater and I accept that orders should be made to remedy the view obstruction. Trees toward the southern end of the hedge cause the greatest obstruction, but the hedge is a single component of the landscape.
If trees in the second row are pruned, removing the row of trees closest to the fence, as Ms Ingham requests, would not greatly increase the view access compared to pruning them, and I see no great advantage in doing this.
Mr Pettigrew provided little assistance in exploring alternative orders should I find reason to order interference with the trees. The report of Mr Ackroyd and Mr Stamper suggested several alternatives and their possible costs, from minor pruning to complete removal of the hedge. Between these two extremes they proposed selective removal of trees within the hedge to allow some sunlight, but I find this would not sufficiently address Ms Ingham's situation. On page 8 of their report they suggest removal of the first 25 trees in the hedge, stating that "This part of the avenue is responsible for causing most of the reduction of sunlight on the dwelling and would therefore have the greatest impact if removed." On my own observations I find this alone would not sufficiently restore Ms Ingham's views and that removal of a greater portion of the hedge is required as well as pruning of the remainder. No detailed submissions were made regarding the impacts of removing various lengths of the hedge, so I use my own estimate that removing half of the hedge seems appropriate. The orders will allow Mr Pettigrew the option of removing the entire hedge and maintaining any replacement hedge if he so desires.
At s 14D(2) the Trees Act allows orders to be made for: (c) maintaining trees at a certain height or shape; and (d) removing trees and replacing with a different species of tree. Any pruning would be best prior to winter to provide Ms Ingham maximum access to sunlight during winter.
Pruning of the northern section of the hedge will be to a maximum height of 4 metres to minimise impacts on these established trees, but pruning of any replacement trees will be at 3 metres to maximise view and sunlight access for Ms Ingham.

Orders

The Court orders that: 1. The application is upheld. 2. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the 38 trees comprising the southern half of the Leyland Cypress hedge along the common boundary with the applicant's property. 3. Within 6 months of the date of these orders the respondent is to replant a hedge of a different species of tree along the same section of the common boundary. 4. During April of every year the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the replacement trees as follows: 1. Reduce their height so that the top surface of the hedge is no more than 3.0 metres above ground level; 2. Remove all parts of the trees overhanging the applicant's property by pruning back to the line of the common boundary. 1. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to prune the remaining (approximately) 38 Leyland Cypress trees forming the northern half of the hedge as follows: 1. Reduce their height so that the top surface of the hedge is no more than 4.0 metres above ground level; 2. Remove all parts of the trees overhanging the applicant's property by pruning back to the line of the common boundary. 1. Every year during April, beginning April 2017, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the pruning ordered in (5)(a) and (5)(b). 2. If the respondent decides to remove the northern half of the Leyland Cypress hedge prior to pruning ordered above or at any point in future, AND if the respondent determines to replant a hedge along that section of the boundary, the respondent is to plant a different species of tree and is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the pruning ordered in (4)(a) and (4)(b) above during April of every year. 3. The works in (2), (4), (5), (6) and (7) are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. Given reasonable notice the applicant is to allow any property access required during reasonable hours of the day for the works in in (2), (4), (5), (6) and (7).

D Galwey Acting Commissioner of the Court

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: 05 January 2016

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