Lee v Stapleton

Proposed orders

1. The applicants seek the following (summarised) orders: 1. Prune trees T1-T25 in the hedge to a height of 2.5 metres and maintain at a maximum height of no higher than 2.8 metres above natural ground level. 2. If trees T1-T25 are not pruned per Order 1 within 10 days of the date of these orders, Man Yee Lee or her agents shall have the right to access the respondents' property to undertake pruning works per Order 1, at the of the respondents' expense.

The respondent's position

1. The respondents resist pruning any height from the trees because they claim it would significantly reduce privacy to their front yard, where their children play, but provide little benefit to the applicant. They suggested that should the height of the trees be reduced, any relief to the applicant's light or view obstruction would be marginal, as the hedge does not currently severely obstruct light to a window of their dwelling, nor their views, and because trees other than those comprising the hedge are mainly responsible for blockage of winter light.

The onsite hearing

1. The hearing commenced with an inspection of the trees along the Stapleton's south side front yard boundary.
2. Ms Lee was self-represented. Mr Wong is Ms Lee's husband and he attended the hearing introduction and the site view independent of Ms Lee, as her agent. Mr and Mrs Stapleton attended with their Solicitor, Mr Cole, while Dr Lamb, a viewing expert, and Ms Sneyd, a town planning consultant, attended as the respondents' expert witnesses.
3. The respondents' land is 94 metres deep and the dwelling is positioned at the rear. The 25 trees form a reasonably dense screen, sufficient to create the impact of a perforated wall. They are planted relatively close together in a row 30-40 metres long, parallel to and within one metre of the common side boundary. This boundary extends from west at the front towards the east.
4. The Court moved to the applicant's property to assess the hedge's impact. Initially a garage window (W3) was considered because the children played in the garage. An upstairs garage attic was located but was not inspected. Neither of these spaces are living areas as such, or occupied as bedrooms.
5. The Court next inspected sunlight available to windows W1 and W2 in the walk-in wardrobe and ensuite bathroom on the northern side of the applicant's dwelling, as Ms Lee claims this is used as a family living area, particularly in the early mornings, and that sunlight is of a premium.
6. Further east of this bathroom, the Court assembled for submissions on a north facing veranda which leads into family rooms to the south and into an enclosed veranda at the far eastern end.
7. The Courts' location on the north facing veranda is where views are said to have been lost. This position capitalises on the winter sun on its most northerly path and provides for district views across an arc from north-east through north to north-west.

Jurisdictional requirements

1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

1. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purposes of the Act?
2. Section 14A(1) states: (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
3. The 25 trees are growing relatively close together in a row and were planted about 15 years ago. They are currently between about 3.5m and 5.5m tall, averaging about 4.5m. The respondents submitted that gaps between some trees resulting from poisoning, and a general sparsity of low foliage, led to the trees not satisfying the definition of a hedge under the Trees Act.
4. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at par [40]-[41], Preston CJ discusses the criteria relevant to a determination that trees form a hedge, and were planted 'so as to form a hedge'. His honour states: "[40]… Being sufficiently close is relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species, the age of the tree, the health and growth of the tree, and the scale of the landscape. [41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a) construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge."
5. Further interpretation of s 14A(1)(a) of the Trees Act is provided in Wisdom v Payn [2011] NSWLEC 1012 ("Wisdom"), where at par [45], Moore SC and Hewett AC state: "[45]…We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge."
6. Here are 25 Xylosoma trees arranged in a straight row. They share similar shape, form, and leaf morphology. Based on this species' typical canopy size at maturity of about 5 metres, the average spacing between trees is ideal for a hedge planting. The prior owner planted them for privacy screening. As a result of all these factors, I conclude that s 14A(1) is satisfied for the hedge.
7. Section 14B states that 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,
8. The applicant owns her property and claims that sunlight to a window is severely obstructed, and that views from her dwelling are severely obstructed by the respondent's hedge. This satisfies s 14B of the Trees Act.

Section 14C of the Trees Act - Notice of application for order to be given to owners of affected land states: (1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the trees are situated, and (b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and (c) any other person the applicant has reason to believe will be affected by the order. (2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period. (3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.

1. The respondents submitted that the applicant has not met the requirements of s 14C of the Trees Act. In Ball v Bahramali [2010] NSWLEC 1334 ("Ball"), at [38], Fakes C addressed a similar situation; "With respect to Mr Gerathy's contentions concerning the notice given by the applicant and compliance with s 14C(1) the application was filed with the Court on 19 August. The date specified and stamped in the application by the Court regarding when the application had to be served on the respondents and other parties was 27 August. The matter was listed for a preliminary hearing on 21 September 2010. This information is recorded in the application; this was copied and made available to the applicant. Thus there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1)."
2. In this case, Ms Lee's application was lodged with the Court on 2 March 2022. The date specified by the Court for service of the stamped application on the respondents and other parties was 30 March 2022, and the respondents were served with this application on 22 March 2022, at the Supreme Court. The matter was listed for a preliminary hearing on 20 April 2022, as displayed on page 2 of the stamped application. This information is recorded in the application and was copied and made available to the applicant.
3. As occurred in Ball, in this case there was at least 21 days notice specified by the Court for the serving of documents and the preliminary hearing and therefore compliance with s 14C(1) of the Trees Act. I note commentary referencing Ball on page 29 of the Land and Environment Court's Annotated Trees Act, which says; "It is clear that the 21day period relates to notice of an application having been made not of an intention to lodge an application"
4. Section 14C(1)(b) requires applicants to also provide the local council with at least 21 days' notice of lodgement of the application. Notice of the application was given to Ku-ring-gai Council (Council), but the date of such notice was unclear because email evidence of communication supplied by the applicant was undated. Nonetheless, in my previous hearings in the Ku-ring-gai Local Government Area (LGA), Council has never elected to attend hearings conducted under the Trees Act, and I do not see why this situation would be an exception. I also see no reason why the matters before the Court in these proceedings would be impacted by the possible participation of Council.
5. For these reasons, and in the interest of a just, cheap and quick resolution of the dispute, I invoke the Court's powers under s 14C(3) "to vary the period of notice under this section if it thinks it appropriate to do so in the circumstances", such that the applicant's notification to Council is deemed to meet the requirements of the Trees Act.
6. Section 14D covers the Court's jurisdiction to make a broad range of orders.
7. Section 14E(1)(a) requires applicant/s make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated. Ms Lee is the applicant. Mr Wong is Ms Lee's husband, and he applied to the Court to act as Ms Lee's agent.
8. Mr Wong was granted leave of the Court to appear at the Directions hearing on 20 April 2022 instead of Ms Lee. He also attended the onsite hearing introduction and the site view independent of Ms Lee, ostensibly as her agent.
9. As submitted by the respondent, the granting of Agency status by the Court requires fulfillment of Rule 7.7 of the Land and Environment Court Rules 2007 (LEC Rules): Granting of leave for a person to appear by agent.
10. To clarify his satisfaction of Rule 7.7 of the LEC Rules, Mr Wong submitted copies of emails from 20 April 2022 to the Court. One email from Mr Wong requested authorisation to act as Ms Lee's agent, while a second email from Ms Lee requests that Mr Wong act as her 'authorised agent' for this case. Mr Wong noted receiving no acknowledgments or replies from the Court.
11. Where a party is requesting to act as an agent, the Court Registry normally provides documents and/or directions to facilitate satisfaction of the requirements of Rule 7.7 of the LEC Rules, and it is unclear why this apparently has not occurred here. Mr Wong appeared genuinely shocked that these emails requesting leave to act as agent may not be sufficient. While it may seem surprising that neither Ms Lee nor Mr Wong sought written confirmation from the Court of Mr Wong's agency status, it is not unusual for unrepresented parties to be unaware of requirements and procedures when involved in matters under the Trees Act. Considering the emails Ms Lee and Mr Wong sent to the Court on 20 April 2022 apparently went unanswered, it was not reasonable for Ms Lee or Mr Wong to have known about the requirements in Rule 7.7 of the LEC Rules.
12. As a consequence of this agency question arising, Ms Lee joined the hearing for the parties' submissions. Condensing the issues, Mr Wong was granted leave of the Court to appear at the April Directions hearing, he appeared at the case introduction and site inspection without Ms Lee, then Ms Lee and Mr Wong submitted the applicant's case together. It is not unusual for parties to gain advice and support from relatives or friends at onsite hearings, consistent with the informal procedures which underpin the Trees Act.
13. Nonetheless, Mr Wong has not satisfied Rule 7.7 of the LEC Rules, and therefore is not authorised to act as Ms Lee's agent. However, as the Court Registrar granted Mr Wong leave to appear at the April Directions hearing, and, along with the respondents, Ms Lee has engaged in the parties' submissions onsite, I find no impediment to prevent the Court from next considering 14E(1)(a) of the Trees Act, which requires that applicants make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated.
14. Mr and Mrs Stapleton submitted that no reasonable effort had been made by the applicant to reach agreement with them, and that conversely, they had made "numerous attempts via letter and email, including instructing their solicitor" to meet the applicant onsite in an effort to reach agreement. The respondents claim that the applicant and Mr Wong have been unwilling to consider all of their attempts to reach agreement, and thus avoid a hearing.
15. While I don't make my final decision regarding satisfaction of 14E(1)(a) of the Trees Act until before I make an order, I refer to Robson v Leischke (2008) 72 NSWLR 98 ("Robson") where Preston CJ provides extensive guidance to the 'reasonable effort' required to satisfy the Trees Act. At [195] of Robson, his Honour notes that: "The language in s 10(1)(a) of the Trees Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process…"
16. The requirement under s 14(1)(a) of Pt 2A of the Trees Act is the same as that under s 10(1)(a) of Pt 2 of the Trees Act. His Honour provides a framework for consideration of this requirement at [191]-[194] of Robson.

Reasonable effort to reach agreement "[191] The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. [192] The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. [193] The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. [194] The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."

1. Concluding [195] of Robson, Preston CJ notes that a more demanding requirement exists under s 88K(2)(c) of the Conveyancing Act 1919 and s 40(2)(d) of the Land and Environment Court Act 1979 (LEC Act), which provide that the applicable court should not make an order imposing an easement over land unless it is satisfied that: "all reasonable attempts have been made by the applicant for the order to obtain the easement or an easement having the same effect but have been unsuccessful". The requirement that "all reasonable attempts" be made is more demanding than "a reasonable effort" to reach agreement."
2. Nevertheless, in relation to the more demanding requirement that "all reasonable attempts" be made to reach agreement, Lloyd J noted in Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 at [14]: "a) The applicant need not negotiate exhaustively to a consensus which involves concessions he may deem not to be in his best interests (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd (1996) 7 BPR 14,638 at 14644.2). b) The applicant is not required to demonstrate a willingness to meet any demand, even an unreasonable demand, to satisfy the court that all reasonable attempts to obtain the easement have been made (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.8). c) The court should make a determination on the basis of the whole circumstances of the case (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.2). d) The test requires an objective assessment (Coles Myer NSW Ltd v Dymocks Book Arcade Ltd at 14643.8). e) The requirement is satisfied when objectively it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future (Tregoyd Gardens Pty Ltd v Jervis (1997) 8 BPR 15,845)."
3. These tests also provide guidance in ascertaining whether the requirement in s 10(1)(a) of the Trees Act that the applicant has made "a reasonable effort to reach agreement" is satisfied.
4. Ms Lee and Mr Wong appear to have relied on the height thresholds of 1.8m pertaining to the Dividing Fences Act 1991, and the 2.5 metre tree height threshold relevant to determination of s 14A(1) of the Trees Act to support their claims for pruning of the hedge. Neither of these height thresholds are relevant factors in the Court's determination of orders for the particular height to which a hedge shall be pruned. Many applicants believe that the Trees Act requires hedges be pruned and maintained at a maximum height of 2.5 metres. This is a misinterpretation of the Trees Act, which often appears to influence applicant intransigence and willingness to negotiate.
5. In applying the five tests from [195] of Robson to the context of this case, I am satisfied that the applicant has made "a reasonable effort to reach agreement". Further insight is gained from Commissioner Fakes' discussion at [39]-[45] of Ball; "[39] Mr Gerathy's concerns about the 3 days between the applicant's son visiting the respondents and then filing the application in essence go towards s 14E(1)(a) and the making of a reasonable effort. [40] I agree that the effort to come to an agreement has been less than ideal. However, s 14E(1)(a) states that The Court must not make an order under this Part unless it is satisfied (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and [41] The making of orders presumes that the matter has been heard. Orders generally follow a judgment; even Consent Orders require a determination and a reason for agreement. The Act does not prescribe a time period for reaching an agreement or provide guidance on a reasonable effort. [42] The experience of the Court in these matters is that attempts by applicants to negotiate an agreement with their neighbour are often unsuccessful. This may be due to many factors including a flat refusal by a respondent to participate, ambit or unreasonable requests by an applicant, a history of previous disputes about other matters and cultural differences. [43] In a number of matters that have come before the Court, an applicant has made a single approach to a tree owner before the making of the application. There is a period of at least 21 days from the serving of the application until the preliminary/ directions hearing. The Court considers that this period is available for parties to negotiate an agreement. A number of disputes have settled before the directions hearing and the matter has been discontinued. Similarly, matters have been resolved and discontinued post directions hearing and prior to the date set for the final hearing. [44] The hearing also provides another opportunity for the parties to come to an agreement. In a number of matters, the parties have agreed on consent orders and the Court has concurred. [45] Therefore, while the initial approach was only some days prior to the filing of the application, there have been opportunities up until the end of the hearing for negotiations to occur. On the basis of this, I do not propose to dismiss the application on the basis on non-compliance with s 14E(1)(a)."

Sunlight obstruction

1. Considering the garage with window W3 and skylight W4, the Cambridge dictionary defines a dwelling as "a house or place to live in". The applicant's garage is not used for this purpose. As both s 14E(2)(a)(i) and s 14E(2)(a)(ii) of the Trees Act specify obstruction to "…a dwelling situated on the applicant's land", the garage fails to meet this requirement. Even if I deemed that the garage should be assessed as a dwelling, guidance that may be employed by the Court from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), would lead sunlight to these two window locations being assigned low importance, relative to windows in living areas or even bedrooms. Further, the nominated upstairs room is above the hedge and clear of the hedge's potential for obstruction of sunlight and views. As a result, the garage shall not be assessed further.
2. The respondents challenged the significance of sunlight to windows W1 and W2 in the applicant's ensuite bathroom because it is a 'non-habitable' room, while the applicant claimed it is used by all her family, particularly in the early mornings, and that sunlight is of a premium. Regardless of the merits of these contentions, the language of s 14E(2)(a)(i) of the Trees Act says, "…are severely obstructing sunlight to a window of a dwelling situated on the applicant's land" These windows are "…of a dwelling situated on the applicant's land", thus they shall be considered.
3. In assessing severity of sunlight obstruction, the Court may take guidance from criteria used by local government in Development Application (DA) assessment, where obstruction of direct sunlight to more than 50% of a living room window in mid-winter, for more than three hours between the hours of 9am and 3pm is considered a threshold for intervention. Under the jurisdiction of the Trees Act, only one window need be so impacted.
4. The hearing was conducted in the afternoon four weeks before the winter solstice. Both parties accepted that the sun's northern winter arc was thus similar to that of mid-winter. The house floor is elevated about 900mm from ground level, and W1 is about 5m from the hedge. When inspected at around 2pm, sunlight was impacting much more than 50% of the surface of north facing W1, and the sunlight obstruction by the hedge was minor. W2 received no direct afternoon sunlight due to its easterly orientation.
5. Looking north from W1, the hedge is fairly uniform in height, and the ground is fairly level. Considering the sun's northern arc, the sunlight obstruction by the hedge would be about the same at 10am as at 2pm, it would thus be less obstructed between 10am and 2pm than at either 10am or 2pm, and least obstructed about midday. There are no other trees or structures obstructing the northern outlook across this four hour period. As consequence, I am satisfied that W1 receives more than 50% sunlight exposure for at least the four hours between 10am and 2pm in midwinter.
6. Shadow diagrams provided by Ms Sneyd support this conclusion, while those submitted by the applicant were her own work. While Ms Lee may be an engineer who is qualified to produce such drawings, the lack of objectivity that necessarily exists when a party produces their own 'expert evidence' renders such evidence unreliable. Based on the respondents' submission, Mr Wong received advice to this effect from the Registrar at the Directions hearing.
7. Turning further towards the north-east, a large evergreen Cedrus deodara (Himalayan Cedar) near the common boundary in the respondents' property would obstruct the highly valued morning light, but there is no remedy under the Trees Act for light obstruction by specimen trees. Tall Liquidambar street trees also block late afternoon sun access towards the north-west. These obstructions may cumulatively impact sunlight availability, but considered independently, the hedge only obstructs sunlight to windows to a minor extent. Mr Wong noted the lack of sunlight to his north side gardens, but the jurisdiction of the Trees Act under s 14E(2)(a)(i) covers "(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land". It does not extend to obstruction of sunlight to a garden.
8. As a result of these considerations, the obstruction of sunlight as a result of the hedge is not severe, and s 14E(2)(a)(i) is not engaged.

View obstruction

1. Mr Wong submitted that the view of the roof of a neighbouring 'heritage' dwelling to the north was especially desirable, and that this view was lost as a result of the hedge. Ms Lee claimed that the impact of hedge growth on light and views had altered the feeling or atmosphere of her workspace, forcing her to change its location or orientation.
2. The Court's location for submissions on the north facing veranda was proximal to the hedge, and the applicant's predominant nominated location from where views may be gained. Employing the arboricultural expertise that I bring to the Court, I could see indications where the hedge had been previously pruned at levels between 400-600mm below its current height. This was consistent with my observation of the hedge trees from the respondents' property, and with the evidence of Mrs Stapleton and Ms Cocquerel.
3. It was, however, inconsistent with Mr Wong's claim that the trees had been previously pruned to 2.5 metres since 2015. None of my observations support this conclusion, and no satisfactory evidence has been submitted by the applicant or Mr Wong to substantiate this claim.
4. This finding requires me to consider the scope of the Trees Act. The Interpretation Act 1987 permits reference to a limited range of extrinsic material to assist in interpreting the Trees Act. In this regard, I refer to the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) ('the Review').
5. On page 39, the Review describes the scope of the Trees Act. In part, this says; "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 (and views in this case) which had not existed at the time of purchase".
6. It is relevant to note that this Court, under the jurisdiction of the Trees Act, has consistently determined that an applicant is not entitled to a view (and in this case, sunlight) which was not available to him/her when he/she purchased the property: see Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150.
7. As a consequence, any orders contemplated would exclude reducing the hedge to a height lower than 4.5 metres, which, based on the affidavits and photos supplied by Ms Cocquerel and Mrs Stapleton, was the approximate average height of the trees upon the applicant's occupation of her dwelling in 2015. Similarly, assessment of the severity of obstruction of sunlight or views shall only consider marginal growth above this average hedge height of about 4.5 metres.
8. The nominated views available to the applicant are district views across an arc from north-east through north to north-west. While Mr Wong may enjoy viewing more of the nearby roofline, it is by no means iconic, and is part of general district views. Any obstruction of these district views resulting from the top 600mm of the hedge is minor. Pruning the hedge height, even by 600mm, would only have a minor impact on the extent and/or quality of views available. Therefore, I am not satisfied that the obstruction of the views as a result of the hedge is severe. Section 14E(2)(a)(ii) is therefore not engaged.
9. As neither s 14E(2)(a)(i) nor s 14E(2)(a)(ii) of the Trees Act are met for the hedge, there is no need to consider the balancing of interests required by s 14E(2)(b).
10. Mr Wong also noted the increased obstruction to views which is likely in the future. While s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word are in s14E(2)(a)(ii), requires the trees the subject of the application to be severely obstructing views at the time of the hearing. See Tooth v McCombie [2011] NSWLEC 1004 at pars [14]-[15].
11. In any case, Mrs Stapleton has provided evidence, undisputed by the applicant, that she has pruned the hedge height by about 500mm twice each year since 2018 and has noted in her affidavit that she plans for this pattern to continue. There is no reasonable basis to presume this will not be the case.

Conclusions

1. I am satisfied that the 25 Xylosma trees in the respondents' property form a hedge as defined by the Trees Act, engaging s 14A(1). Section 14C is satisfied as the applicant has given at least 21 days' notice of the lodging of the application and the terms of any order sought, along with s 14(1)(a), as the applicant has made, albeit barely, a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated.
2. From the evidence adduced on site, and from the parties' submissions, I am not satisfied that either sunlight to a window of the applicant's dwelling, or views from the applicant's dwelling are obstructed by the hedge to any extent greater than minor. I accept the respondents' submission that any obstructions to sunlight or to views as a result of the hedge are not severe, thus s 14E(2)(a) of the Trees Act is not engaged, and I have no jurisdiction to make orders.
3. Even if I was wrong, and the obstructions of sunlight or views as a result of the hedge were severe, photos taken around the time that the applicant occupied her dwelling show that the hedge, though informal, averaged about 4.5 metres high. Conformity with the scope or intent of the Trees Act would prevent applicants gaining sunlight or views that would not have been available when they initially occupied their property. Therefore, any orders contemplated would preclude intervention with parts of the trees below a height of 4.5 metres.
4. The respondent sought orders for costs, but Commissioners of the Court do not have the power to order costs. If the respondents wish to seek such an order, they must file a Notice of Motion for costs to be heard by the Registrar or a Judge of the Court.

Orders

1. As a consequence of the foregoing, the orders of the Court are: 1. The application is refused.

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: 11 August 2022