Jones v Stephenson

Trees (Disputes Between Neighbours) Act 2006 (NSW)

1. Relevant sections of the Trees Act provide: Part 2 Court orders - trees that cause or are likely to cause damage or injury 7 Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. … Part 2A Court orders - high hedges that obstruct sunlight or views … 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

Land and Environment Court Rules 2007 (NSW)

1. Relevant rules of the LEC Rules provide: Part 6 Neutral evaluation of proceedings and rules regarding contempt in Class 1, 2, 3, 4 or 8 of the Court's jurisdiction … 6.3 Application of Supreme Court Rules regarding contempt Part 55 (Contempt) of the Supreme Court Rules 1970 applies, so far as applicable, to proceedings to which this Part applies.

Supreme Court Rules 1970 (NSW)

1. The SC Rules provide: Part 55 Contempt Division 1 Preliminary 1 Interpretation In this Part contemnor means a person guilty or alleged to be guilty of contempt of the Court or of any other court. … Division 3 Motion or proceedings for punishment … 6 Procedure generally (1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders. (2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders. 7 Statement of charge A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons. 8 Evidence (1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit. (2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit. 9 Service The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor. … Division 4 General … 13 Punishment (1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both. … (3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security. …
2. Mr Stephenson accepted that the statement of charge and amended notice of motion were served personally on him. An affidavit of Mrs Michele Jones affirmed 23 August 2020 states that a copy of the Court's sealed orders was also served personally on Mr Stephenson.

Mr and Mrs Jones' evidence in chief

1. Mr and Mrs Jones read the affidavit of Mr Michael Jones affirmed 29 June 2020. Mr Jones deposed that trees 2, 3 and 4 have not been pruned since April 2019 or maintained at the height specified by the Court. These trees are now blocking the sun in both the downstairs living area and the upstairs lounge room. Annexed to his affidavit were six photographs labelled 1-6, described in the affidavit in the following terms: (i) photographs 1 and 2 show trees above window, taken May 6 2020; (ii) photograph 3 shows trees, taken June 2 2020; (iii) photograph 4 shows sun being blocked from downstairs window; (iv) photograph 5 shows trees as seen from balcony with camera held at same height as bottom of window; and (v) photograph 6, taken June 24 2020. The assumption as I understand the affidavit is that references to a window are to Window 2 the subject of Order 3, except photograph 4 which is described as a downstairs window. References to trees are understood to be to the three trees the subject of Order 3, being trees 2, 3 and 4.
2. Mr and Mrs Jones read the affidavit of Mrs Michele Jones affirmed 31 August 2020. Annexed to the affidavit were five additional photographs labelled 6a-10. Mrs Jones deposed that photograph 6a taken on 25 July 2020 shows the trees as still not pruned in her view. Photograph 7 was taken on 29 August 2020 and shows the trees having been pruned yet remaining in her view above the bottom of the upstairs window (which I understand to be Window 2). This photograph shows a stump as severed by an arborist in 2017, which is the level the trees should be pruned to in Mrs Jones' view. Photograph 8 was taken on 29 August 2020. Photograph 9 was taken on 29 August 2020 and shows numerous branches that had not been pruned in her view. Photograph 10 was taken on 29 August 2020 and shows the pruned trees still remaining well above the bottom of the upstairs window (which I understand to be Window 2) in her view. Photographs 6a, 7 and 10 each have a digitally drawn red line across them from the bottom of the window, purporting to show the level to which the trees should have been pruned in Mrs Jones' view.
3. As I indicated in the hearing, parts of Mrs Jones' affidavit affirmed 31 August 2020, specifically pars 9, 10 and 11 of the affidavit, were taken by the Court to be submissions rather than evidence. These paragraphs are summarised below.

Mr Stephenson's evidence

1. Mr Stephenson read his affidavit sworn 13 September 2020. Mr Stephenson deposed that he was aware of the Court's orders made in respect of trees 2, 3 and 4 in 2017 and that all orders were complied with. Additional growth that developed by 29 August 2020 was no more than one metre of sparse branch growth as depicted in photograph 7 annexed to the affidavit of Mrs Jones. That growth cannot be said to block sunlight. Photographs 6a, 8, 9 and 10 annexed to Mrs Jones' affidavit are misleading. They have been taken from a lower level which creates a parallax error and does not give an accurate assessment of the height of the trees. It is not accepted that the red line marked on the photographs is horizonal with the bottom ledge of the window (which I understand to be Window 2).
2. Mr Stephenson said that he pruned the branches earlier this year and agrees that growth since pruning is as depicted in photograph 7 dated 29 August 2020 annexed to Mrs Jones' affidavit.
3. Mr Stephenson said that in the future he will keep an eye on the height of the trees to the best of his ability and take measures to ensure they are below the bottom of Mr and Mrs Jones' window. It was his intention to have the trees removed this year, which is why the required pruning was delayed.
4. Annexed to Mr Stephenson's affidavit were several photographs. Photograph A taken on 25 July 2020 shows the line of trees on Mr Stephenson's boundary and the shadowing effect on Mr and Mrs Jones' northern wall at 11.17 am. Mr Stephenson said that the shadows cast by trees 2, 3 and 4 fall on cladding that is below the window (which I understand to be Window 2). In Mr Stephenson's view, a large Lilly Pilly tree produces most of the shading. This tree was not the subject of the commissioner's orders. Photographs B1, B2 and B3 taken on 26 July, 2 August and 5 September 2020 respectively show the height of trees 2, 3 and 4 following thorough pruning, which appears to be level with the bottom of what I understand to be Window 2.

Mr and Mrs Jones' evidence in reply

1. Mr and Mrs Jones read an affidavit in reply of Mrs Jones affirmed 22 September 2020 much of which was submissions. In Mrs Jones' view, Mr Stephenson has commented on shadow and light levels caused by the trees, however, this is not for him to evaluate. The Court has already made its determination regarding light and shade and has ordered the trees be pruned each year. It is not true that Mr Stephenson pruned the trees earlier this year and it is not clear from his affidavit when this alleged work was carried out. Mr and Mrs Jones' observation in May 2020 was that the trees had a full years' regrowth since being pruned last year.
2. Mr Stephenson's photograph B1 was taken from above and still shows the trees above the bottom of the window and above the original arborist's trunk cuts. Mr Stephenson says this was taken on 26 July 2020 after his thorough pruning. Mrs Jones said she rejects that date as the photograph must have been taken after 29 August 2020, as some of the branches in photograph 10 (annexed to Mrs Jones' affidavit of 31 August 2020) have been pruned in photograph B1. Mr Stephenson's other photographs are of no consequence as they show no compliance in April 2020.
3. Annexed to Mrs Jones' affidavit were : (i) an email from a staff member of the Court confirming that the commissioner's orders were handed down by telephone on 30 January 2017; (ii) a Wikipedia page about the Leyland Cypress, the species of trees 2, 3 and 4; and (iii) a colour copy of photograph A annexed to the affidavit of Mr Stephenson sworn 13 September 2020. Mrs Jones' concerns about why this image was provided to the Court in black and white were allayed at the hearing after it was made clear that colour versions of all of Mr Stephenson's photographs had been filed with the Court.
4. As I indicated in the hearing, parts of Mrs Jones' affidavit affirmed 22 September 2020, specifically pars 8, 9, 10 and 11 of the affidavit, are submissions rather than evidence. These paragraphs are summarised below.
5. An important matter of clarification to identify is that both parties agree that the window that appears in all the photographs, except photograph 4 of a downstairs window, is Window 2 as described at [35] of the commissioner's judgment.

Mr and Mrs Jones' submissions on non-compliance

1. Mr and Mrs Jones submitted that despite Order 3 made by the commissioner specifying that trees 2, 3 and 4 be pruned by an arborist annually in April, the trees were not pruned in April, May or June this year, forcing them to commence these contempt proceedings. It is Mr and Mrs Jones' contention that the trees were not pruned at all earlier this year and were only partially pruned in July after Mr Stephenson was served with the amended notice of motion for contempt proceedings. They allege that Mr Stephenson was not otherwise planning to prune the trees. Guilt was not purged by pruning the trees after the amended notice of motion was served. The pruning was necessary in April as the unpruned trees prevent low sunlight in winter months from entering Mr and Mrs Jones' windows.
2. The commissioner's order is not uncertain or ambiguous in its terms. Mr Stephenson is well aware of what Order 3 requires. Finding that Mr Stephenson is in contempt of the Court's orders is necessary to denounce his failure to comply with Order 3.
3. Order 3 specified that the pruning was to be undertaken by an arborist, yet Mr Stephenson has inferred that he is permitted to do the work himself. This is not correct and it is preferable that any future work be performed by an arborist as this will produce better compliance with Order 3 and greater certainty regarding the date on which the trees are pruned in the future.
4. Mr Stephenson's admission at par 10 of his affidavit (see [16] above) that pruning was delayed makes clear that he has not complied with Order 3 and proves the charged contempt.
5. Mr Stephenson is free to remove the trees if he wishes. If not removed, he must maintain them in April as ordered. Mr Stephenson's comments regarding parallax errors become irrelevant given his admission. That aside, even accounting for some slight parallax error, Mr and Mrs Jones' photographs clearly show the trees above the height specified in Order 3.
6. Mr Stephenson may claim that the pruning in late July is "close enough", however six inches above the bottom of Window 2 one year will become 12 inches the next year. Mr Stephenson is reluctant to comply with the orders. The Court needs to enforce compliance by imposing a penalty to disabuse Mr Stephenson that the orders are not open to his interpretation and modification.
7. Mr and Mrs Jones submitted that Mr Stephenson has displayed entrenched reluctance in pruning the trees, requiring a penalty which will sufficiently disabuse the notion that he can exercise his discretion in complying with the Court's orders. In Mr and Mrs Jones' submission, the pain of pruning the trees must be less than the pain of the penalty the Court imposes. Failing to impose a penalty would set a precedent for Mr Stephenson that he is able to leave the previous years' regrowth unpruned during May, June and July, as has occurred this year.

Mr Stephenson's submissions on non-compliance

1. Mr Stephenson submitted that the three trees have been pruned (at an unspecified time) by him to a height which complies with Order 3. Mr Stephenson submitted that Mr and Mrs Jones' version of events is not accurate. Pruning of trees 2, 3 and 4 was undertaken by him in the early months of 2020 as required by the order. A period of unemployment meant he was unable to afford to pay an arborist to complete the work in 2020. Mr Stephenson's reading of Order 3 is that an arborist was only required to prune the trees on the first occasion and that he could carry out the work himself going forward. He has performed further pruning since July 2020. In any event, trees 2, 3 and 4 create minimal shade on Mr and Mrs Jones' land. Mr Stephenson submitted that photographs annexed to his affidavit show that sunlight is clearly shining onto Window 2.
2. Mr and Mrs Jones' contention that trees 2, 3 and 4 are higher than the bottom of Window 2 is not accepted. The photographs produced by Mr and Mrs Jones are not accurate. There is no evidence of measurements of the height of the trees compared to the height of the bottom ledge of Window 2. The assertions that the trees are higher than Window 2 are unsubstantiated guesses.
3. Other orders made by the commissioner to do with construction of a root barrier have been complied with. Order 3 was complied with as an arborist substantially reduced the height of the three trees to the height required. A substantial pruning was needed due to the height of these trees. They used to be as high as the tall Lilly Pilly seen in the photograph A. Mr Stephenson contended that the trees have now been pruned by him to the correct height. The stump left by the arborist is below the required level. He is considering having the trees removed altogether to avoid dispute between the parties in the future. The motion should be dismissed.

Proof of civil contempt for failing to prune in April 2020 established

1. Mr and Mrs Jones bear the onus of proving beyond reasonable doubt that Mr Stephenson has not complied with Order 3. The statement of charge identifies two aspects of the contempt alleged. Firstly, that the trees have not been pruned in the timeframe required by Order 3. One issue to consider first, as it defines the nature of the obligation imposed on Mr Stephenson, is whether Order 3 requires an arborist to undertake the required pruning work in the years after the initial year the subject of the first sentence of Order 3. Having given the construction of the order further consideration and contrary to my preliminary view expressed during the hearing, I consider Order 3 in the second sentence does not require an arborist to undertake the maintenance pruning work after the first year. No such requirement appears in the second sentence of Order 3. It operates independently of the work identified in the first sentence. There is no reason to construe the second sentence as if it is informed by the first sentence. Compliance with Order 3 can be achieved by Mr Stephenson himself pruning the three trees referred to therein annually.
2. The evidence establishes that Order 3 was not complied with in the sense that pruning of trees 2, 3, and 4 to the required height did not occur in April 2020. The unchallenged evidence of Mr and Mrs Jones is that pruning did not occur in April, May or June 2020 and this is identified in photographs 1, 2, 3, 5 and 6. The evidence of Mr Stephenson is that pruning took place at an unspecified time earlier in the year. The photographs attached to Mr Stephenson's affidavit dated 26 July, 2 August and 5 September 2020 are described as being after pruning, and I infer these photographs were therefore taken shortly after pruning. I accept Mr and Mrs Jones' evidence that no pruning took place in April, May or June 2020. It appears most likely that Mr Stephenson undertook pruning sometime in July before the 26th and subsequently. He also admits in his affidavit that there was delay in undertaking the pruning, also giving rise to the inference he did not undertake that activity in April 2020.
3. This aspect of the charge of contempt is established beyond reasonable doubt.

Proof of civil contempt of failing to maintain at height specified in Order 3 not proven beyond reasonable doubt

1. The parties dispute whether Mr Stephenson has pruned the three trees to a height sufficient to comply with Order 3, the second aspect of the charge. Mr and Mrs Jones must establish this matter beyond reasonable doubt. Mr Stephenson accepted that the state of the trees is as shown in photograph 7 attached to Mrs Jones' affidavit affirmed 31 August 2020. According to Mrs Jones this shows the trees having been pruned yet with several branches remaining in her view above the bottom of Window 2. Mr Stephenson relied on photographs B1, B2 and B3 attached to his affidavit as showing that he has pruned the three trees to the necessary height.
2. As Mr Stephenson submitted, the red lines drawn on photographs 6a, 7 and 10 by Mr and Mrs Jones are not based on any identified measurement and are taken at an angle which is not level with the bottom of Window 2. Photograph B3 dated 5 September 2020 taken by Mr Stephenson appears to be at the height of the pruned trees and appears to show these are trimmed to the bottom of Window 2. The parties are in dispute about whether the stump left by an arborist as shown in photograph 7 is the correct height to which the trees should be pruned. I am unable to determine that issue on the evidence before me.
3. Mr and Mrs Jones have not established that Mr Stephenson has not pruned the three trees to the height required by Order 3.
4. An important consideration in sentencing for contempt is asking whether the contempt has been purged. I consider that Mr Stephenson has purged the contempt established in relation to April 2020, the trees having been pruned to the necessary height sometime in July and August 2020.

Sentencing

1. In Georges River Council v Misfud [2017] NSWLEC 113 I set out 10 factors relevant to sentencing for contempt as identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 per Dunford J at 185: (1) the seriousness of the contempt proved; (2) whether the contemnor was aware of the consequences to himself or herself of what he or she did; (3) the actual consequences of the contempt on the relevant trial or inquiry; (4) whether the contempt was committed in the context of serious crime; (5) the reason for the contempt; (6) whether the contemnor has received any benefit by indicating an intention to give evidence; (7) whether there has been any apology or public expression of contrition; (8) the character and antecedents of the contemnor; (9) general and personal deterrence; and (10) denunciation of the contempt.
2. As to whether the sentencing considerations in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act) apply in these proceedings, I note the following comments of Robson J in Canterbury City Council v Ali Ahmed [2016] NSWLEC 160 (Ahmed) at [19]: Whilst there is fertile ground for debate as to whether the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act") applies to civil contempt proceedings (see Menzies v Paccar Financial Pty Ltd [2016] NSWCA 280 at [15] (Meagher JA)), it has been applied generally (see Hutley at [32] (Pain J); Re Mycorp Pty Ltd [2014] NSWSC 1180 at [4] (Black J)) and by analogy (see Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 at [17] (Biscoe J) ("Queanbeyan")). As such, I consider that the Sentencing Act at least provides guidelines to the Court when it is considering civil contempt.
3. There is overlap between some of the factors identified in Wood v Staunton (No 5), the sentencing objectives in s 3A of the CSP Act and sentencing considerations in s 21A. I will consider these where relevant as a useful guideline. Factors 1, 2, 5, 7, 8 and 9 in Wood v Staunton will be considered.

Objective seriousness of contempt

1. As considered in many cases, for example by Sheahan J in Queanbeyan City Council v Pre-Cast Concrete Solutions Pty Ltd [2008] NSWLEC 147 at [22]-[25] and by Molesworth AJ in Blacktown City Council v Everson [2019] NSWLEC 4 at [11], contempt can be described as technical, wilful or contumacious. Technical contempt is where the contempt is "casual, accidental or unintentional" and such contempt is civil in nature. Wilful contempt occurs when there is deliberate disobedience but without the intention of defying the Court's authority. Contempt is contumacious if there is an element of deliberate defiance of a court's orders and can be criminal.
2. I do not accept that Mr Stephenson has shown any tendency to flout the Court's orders made in January 2017, given that he complied with Order 1 requiring the installation of a root barrier and has apparently complied with Order 3 in the first years of its operation. There is no evidence to suggest other than that the three trees were pruned substantially in 2017, the first year the Court's orders took effect, as their height was reduced by an arborist by a few metres based on the height of the Lilly Pilly shown in photograph A attached to Mr Stephenson's affidavit. No complaint about lack of pruning in 2018 and 2019 has been made in these proceedings. Up until this year it appears that Mr Stephenson has complied with the Court's orders.

Consequences of contempt

1. As noted above, the commissioner's judgment included a finding at [42] that trees 2, 3 and 4 severely obstructed sunlight to Window 2 of Mr and Mrs Jones' property. Timing of annual pruning in April is to ensure that winter sun is able to reach Mr and Mrs Jones' property, in accordance with the commissioner's finding in Jones & anor v Stephenson at [42] that trees 2, 3 and 4 severely obstruct sunlight to Window 2 and at [44] that annual pruning is necessary to improve sunlight to Window 2. Failing to prune at the time ordered in Order 3 potentially deprives Mr and Mrs Jones of that sun. Mr Stephenson was present during the hearing and when judgment was handed down by the commissioner. He can be taken to be aware of the consequences of failing to comply with Order 3 in April each year as additional annual growth would potentially interfere with solar access for Mr and Mrs Jones.
2. As to whether there has been actual loss of sunlight as a result of the proven contempt, Mr Jones asserted in his affidavit that loss of sunlight to the upper and lower windows of his house had resulted because no pruning occurred in April 2020. A downstairs window is not the subject of the Court's 2017 orders. Shading of a downstairs window is not relevant to the consequences of Order 3 not being complied with.
3. Mr Stephenson asserted minimal shading of Mr and Mrs Jones' land was caused by the three trees, that Window 2 received sunlight as shown in the photographs attached to his affidavit and that any shading was from the tall Lilly Pilly next to trees 2, 3 and 4. Mr Stephenson's photographs support these submissions as the lower level of shade cast by the pruned trees compared to the neighbouring taller tree on Mr and Mrs Jones' house wall is apparent. Mr and Mrs Jones have not proven that they have suffered actual loss of sunlight in their evidence. This finding further reduces the seriousness of the contempt. The contempt in this case can be characterised as unintentional, there is no evidence of deliberate defiance of Order 3 and no actual consequences have been proved.

Contrition

1. Mr Stephenson has stated in his affidavit that he intends to ensure compliance with Order 3 in the future. I accept that he faced personal difficulties in the first half of the year which can be seen as extenuating in relation to his failure to prune in April 2020.

No conviction or penalty warranted

1. General deterrence is an important consideration in the imposition of a penalty for contempt where warranted. Given my findings that the contempt has been purged, that the contempt is not serious and that I consider Mr Stephenson is unlikely to re-offend, deterrence has a limited role to play in sentencing in this case.
2. As identified in Pt 55 r 13(1) of the SC Rules, contempt of court can be punishable by fine or imprisonment or both. I have discretion to decide whether I should convict Mr Stephenson for the proven contempt and impose punishment of a fine. While not able to apply s 10 of the CSP Act directly, the factors to be considered in deciding whether to dismiss a charge in subs (3) can helpfully inform my approach. These are the person's character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed, and any other matter that the court thinks it is proper to consider. The parties are neighbours in dispute over three trees on Mr Stephenson's boundary. Mr Stephenson is 60 years old and has no regular employment. The contempt is not serious and has been purged. Mr Stephenson has otherwise complied with the substantial work required by the Court's 2017 orders. I consider it inappropriate to convict or fine Mr Stephenson as the commencement of these proceedings alone is likely to have a salutary effect upon him.

Costs should be awarded

1. I have found that the pruning by Mr Stephenson took place in July 2020 before the 26th. These proceedings were commenced on 9 July 2020. They were reasonably commenced in the circumstances. Mr and Mrs Jones seek costs of the motion itemised in their written submissions as follows: Filing fee - $229.00 Court receipt Copy of judgment - $63.00 Court receipt Travel costs for JP services, photographs and postage - $50.00 Time taken to research and prepare documents for proceedings - $100 Total costs sought - $442.00
2. Costs are defined in s 3 of the Civil Procedure Act 2005 (NSW) (CP Act) as "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration". Pursuant to s 98 of the CP Act, costs are awarded at the discretion of the Court. According to the Costs Guide NSW (Thomson Reuters, Online) examples of disbursements include court fees (citing Langridge v Lynch (1876) 34 LT 695). Certain other pre-proceedings costs incurred in the preparation of a case can also be claimed (see G E Dal Pont, Law of Costs (4th ed, 2018, LexisNexis Butterworths) at [17.3]-[17.6]). I consider the first three items identified by Mr and Mrs Jones are recoverable, totalling $342.
3. Mr and Mrs Jones have been put to the expense of commencing these proceedings and have established part of their contempt case. Costs are compensatory not punitive per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59. Mr Stephenson should be ordered to pay Mr and Mrs Jones' costs as identified above and I will extend the time for payment to 60 days from the date of the order.

Orders

1. The Court orders: 1. The Respondent is to pay the Applicants' costs of the amended notice of motion dated 29 August 2020 in the amount of $342 within 60 days of this judgment.

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