Lock v Sidoti

[2024] NSWLEC 1345

Land and Environment Court (NSW)|2024-03-12

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Court

Land and Environment Court (NSW)

Decision date

2024-03-12

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

Background

COMMISSIONER: Properties along the northern slopes of Woolwich Peninsular look across Lane Cover River to Longueville, Northwood and Riverview. Kristen Lock (the applicant) has lived at her Hunters Hill property since purchasing it in 2012. The back of her dwelling captures the northern view and the winter sunlight. Her property, and others along the northern side of Vernon Street, are separated from the water by a bushy reserve with access for walkers. Here and there, cypress hedges along fence lines separate the gardens of some of these properties. One such hedge growing on the neighbouring property to Ms Lock's west, owned by Elizabeth and David Sidoti (the respondents), extends along the common boundary north of the dwellings. Between the dwellings is a further row of cypress trees planted in pots. Ms Lock and her husband asked the Sidotis to prune the trees to restore their access to sunlight and views, but did not get the outcome they sought. Ms Lock then applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Sidotis to prune the trees to reduce the hedges' height and length, and the trees' spread across the common boundary.
The Sidotis dispute that the trees cause a severe obstruction of sunlight or views. They wish to maintain the trees at their existing height for reasons of privacy and amenity.
The hearing took place onsite, allowing the Court to inspect the trees, both properties and all relevant issues. Ms Lock was self-represented, while Mr Ward represented the Sidotis. Scott Barwick, a planner who had prepared a report for the Sidotis, attended and gave evidence at the hearing.

[2]

Framework for this decision

It is not disputed that all 16 trees in the application are planted so as to form hedges and are more than 2.5 metres tall. They are, therefore, trees to which Pt 2A applies (s 14A of the Trees Act). Because trees T1-T7 were planted in the ground, and trees T8-T16 were planted in pots at a later date, for the purposes of this decision I treat them as two separate hedges.
Section 14B of the Trees Act enables Ms Lock to apply for orders to remedy, restrain or prevent a severe obstruction of sunlight or views caused by the trees. There is no question that the trees are on land that is adjoining the applicant's land.
Considering the position set out by each party, jurisdictional tests requiring determination in these Pt 2A proceedings are found at s 14E of the Trees Act: 14E Matters of which Court must be satisfied before making an order (1) 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 (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
The requirement to give notice at s 14C refers to 21 days notice of the application, establishing the period specified by the Court for the serving of documents and the preliminary hearing: see Ball v Bahramali [2010] NSWLEC 1334 at [38].
If the Court is satisfied that either test at s 14E(2)(a) is fulfilled, as well as the test at s 14E(2)(b), then the Court can make orders to remedy, restrain or prevent the obstruction of sunlight or views, such as the orders set out at s 14D, including orders to prune and maintain trees at a specified size, or orders to remove trees. Before making such orders, the Court must consider the matters listed at s 14F of the Trees Act.

[5]

Whether trees severely obstruct sunlight to a window

Ms Lock's dwelling is over two levels, with windows at the back of the dwelling facing north and those along the side nearest the common boundary facing west.
In support of her submissions, Ms Lock relied upon shadow diagrams prepared in 2023 by Living Trends Designs Pty Ltd, other shadow diagrams, diagrams showing the path of the sun at the winter solstice, along with photographs, both recent and historic. The 2023 shadow diagrams Of Living Trends Designs (Exhibit C) show the extent of shadowing caused by trees in Hedge 1 in November 2012, as well as the additional shadowing caused by trees in Hedge 1 at their current (2023) height. It was noted that the tree height relied upon was not entirely accurate, but the difference is not significant in this decision. The Sidotis relied principally on Mr Barwick's report and onsite evidence. Mr Barwick did not prepare his own shadow diagrams, but referenced the applicant's diagrams in his analysis of the trees' obstruction of sunlight. As I said above, the Living Trends Designs shadow diagrams show only the impacts of trees in Hedge 1. By relying on those diagrams, Mr Barwick has drawn some conclusions that are not based on the existing situation, such as (at p 10 of Exhibit 1): "The material lodged by the applicant identifies that solar access to ground floor windows W1, W2 and W3 is not impacted by the hedge the subject of the dispute." However other material included in Ms Lock's claim (for instance: answers to questions in Form G in Exhibit A; the hedge diagram in Exhibit B) make it plain that trees in Hedge 2 also obstruct sunlight to some of these windows. While Mr Barwick's report might be the only expert report in these proceedings, and I give it considerable weight, I have given less weight to those of his conclusions that are not based on all available evidence.
Window W2, in the dwelling's west-facing side wall, provides light to the pantry. With only narrow side setbacks separating Ms Lock's dwelling from the Sidotis' two-storey dwelling, it is apparent to any observer that sunlight could only reach this window for a short period immediately after midday. Ms Lock suggested this period might be an hour. Despite Mr Barwick's statement regarding this window, quoted above, trees in Hedge 2 would cast shadow on W2. Trees in Hedge 2 do not yet form a dense screen - their shadows would not completely obstruct the window during this short period, but they would obstruct most of it, as Ms Lock has suggested.
To determine the extent of such an obstruction, the Court has relied upon qualitative terms such as those used at [28] in the view-sharing principle established in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140: negligible, minor, moderate, severe or devastating. Here, I differentiate between, firstly, the degree of sunlight obstruction to the window and, secondly, the impact of the obstruction on the applicant's enjoyment of her dwelling. The former is the test at s 14E(2)(a)(i) of the Trees Act, while the latter informs the determination at s 14E(2)(b) and is considered under s 14F. Because most of the available sunlight to W2 is obstructed by trees in Hedge 2, I find those trees cause a severe obstruction of sunlight to this window.
Window W3 is a side entry door near the pantry and kitchen. For the same reasons given above for W2, I find that trees in Hedge 2 severely obstructs sunlight to W3.
Window W4 is a long window to the kitchen. Ms Lock asserts that trees in both Hedge 1 and Hedge 2 cause a total obstruction of the 2.5 hours of sunlight that would, in their absence, be available to W4. Mr Barwick found otherwise, but did not appear to consider trees in Hedge 2, nor the shadow cast by Hedge 1 in the western elevation 1:00 pm shadow diagram (drawing A1.03 in Exhibit C). This obstruction is severe.
Trees in Hedge 1 obstruct all of the 3 hours of sunlight to the dining room window W5. Mr Barwick found this to be the case. This obstruction is also severe.
Unlike W2-W5, the north-facing glass doors to the dining room (W6) and living room (W7) receive winter sunlight during both morning and afternoon. Sunlight to W6 is partially obstructed by trees in Hedge 1 from around 1:00 pm and fully obstructed from around 1:30 pm. Mr Barwick found most of W6 received sunlight for 4 hours in winter and that W7, further from the hedge, received 5 hours of winter sunlight. I find sunlight to W6 and W7 is not severely obstructed by the trees.
Ms Lock does not claim that the trees severely obstruct sunlight to living room windows W8 and W9.
The trees' obstruction of sunlight to windows on the first floor (W10-W16) is significantly less than on the ground floor. Mr Barwick's findings on W10-W12 appear to ignore the shading from trees in Hedge 2.
Trees in Hedge 2 obstruct sunlight to the office window W10, facing west, for around half of the one hour of sunlight that this window might otherwise receive. Ms Lock is clearly concerned about the pending impacts of trees in Hedge 2 as they mature to form a dense screen like trees in Hedge 2, but the current obstruction might best be considered as minor.
Sunlight obstruction to the ensuite's W11 is similar to W10, so is also minor.
Ms Lock says trees in Hedge 2 obstruct approximately 2 out of the 3.5 hours of sunlight otherwise available to her main bedroom's west-facing window W12. Mr Barwick found otherwise but again appears not to have considered trees in Hedge 2. I consider this obstruction to be moderate, but not severe.
According to Ms Lock, and as shown in shadow diagrams, trees in Hedge 1 obstruct approximately 80% of the afternoon sunlight otherwise available to the main bedroom's north-facing glass doors W13. Mr Barwick found that the obstruction is not severe because W13 still receives up to 6 hours of winter sunlight. I agree with this and find the obstruction to W13 is minor.
The trees do not obstruct sunlight to the other north-facing windows on the first floor (14-W16).
In summary, I find that:

trees in Hedge 1 severely obstruct sunlight to W5;
trees in Hedge 2 severely obstruct sunlight to W2 and W3; and
trees in Hedge 1 and Hedge 2 severely obstruct sunlight to W4.

On the applicant's application regarding sunlight obstruction, the test at s 14E(2)(a)(i) of the Trees Act would not prevent the Court making orders.

[6]

Weighing the interests: sunlight obstruction

The Court must determine at s 14E(2)(b) of the Trees Act whether "the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part."
Regarding sunlight, Ms Lock's evidence and submissions brought the Court's attention to the design elements of her dwelling that maximise its passive solar heating during winter, including the location and orientation of windows.
Mr Barwick referenced in his report the Hunters Hill Development Control Plan 2013 (the DCP) that includes guidelines for a minimum of 3 hours of sunlight to living rooms during winter. Mr Barwick wrote (on p 10 of Exhibit 1): "…the ground level western living room still receives at least 4 hours of sunlight access via the north facing glazing despite the extent of shadow to window W5. While the impact to window W5 may reach the threshold of severe impact to that one window, the level of sunlight enjoyed to the principal living room of which window W5 is one opening, continues to well exceeds 3 hours of sunlight access."
I agree with Mr Barwick that the dining room receives more than 3 hours of sunlight through its northern window.
In weighing the various interests of the parties, the Court must consider the matters at s 14F of the Trees Act, including s 14F(o): the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost. The Act does not specify that the loss must be compared with guidelines in the relevant DCP, but clearly the DCP can lend a hand when considering the impact of the obstruction to the applicant.
Ms Lock stressed that sunlight to each window is important for the dwelling's passive solar heating, which I accept.
I note that the DCP's guidelines are more expansive than those referenced by Mr Barwick, and here I include section 3.5.2 of the DCP more fully (with my emphasis added in bold): "3.5.2 SOLAR ACCESS Objectives Objectives in relation to solar access for all types of residential development are: (a) Provide adequate daylight and sunlight to living areas and private open spaces. (b) Preserve solar access for existing properties. (c) Encourage ecologically sustainable developments which reduce the use of fossil fuels for heating and cooling, and which encourage use of renewable energy. (d) Encourage the use of building materials and techniques that are energy efficient, non-harmful and environmentally sustainable. Controls Development proposals should comply with the following provisions and numeric controls which complement the objectives of SEPP (BASIX) 2004: (a) The majority of proposed dwellings should have living rooms and private open spaces which receive reasonable sunlight on the winter solstice: (i) The standard for reasonable sunlight is specified by the Residential Flat Design Code which supports SEPP No 65. (ii) The measurement of reasonable sunlight is explained in a Planning Principle that has been published by the NSW Land and Environment Court. (iii) Development applications should demonstrate the amount of sunlight that would be available to each proposed dwelling via diagrams which illustrate 9:00 am, 12:00 noon and 3:00 pm on the winter solstice. (b) Proposed developments should maintain reasonable sunlight for adjacent properties on the winter solstice: (i) Ensure that the principal living room of any existing adjoining dwelling will receive a minimum of 3 hours of sunshine between 9:00 am and 3:00 pm on the winter solstice. (ii) If the principal living room of an existing adjoining dwelling currently receives less than this standard, development should not reduce current solar access. (iii) Ensure that development will not overshadow more than one third of an existing private open space which currently has sunshine between 9:00 am and 3:00 pm on the winter solstice. (iv) Where adjoining development relies on solar access for heating or cooling systems, existing solar access should be preserved. (v) Demonstrate impacts of the proposed development upon adjoining buildings and any open space areas with shadow diagrams prepared for 9:00 am, 12:00 noon and 3:00 pm on the winter solstice. (c) Development proposals should be designed and orientated to minimise the use of fossil fuel energy: (i) Use of solar energy for heating and lighting should be maximised. (ii) Proposed dwellings should be provided with natural cross ventilation and daylight. (iii) … (viii) Landscaping should admit sun during winter and provide summertime shade, as well as filtering the air. (ix) …"
I note, importantly, that these provisions refer to development, being the design and construction of residential dwellings. The respondents planting of their hedges is not 'development' being considered in the DCP, although it refers to landscaping in its controls. The respondents wish to rely literally on the DCP's controls regarding buildings to assess their hedges' impacts to the applicant's sunlight, but have shown no interest in considering the controls regarding side boundary setbacks (at section 3.3.3 of the DCP): "Generally, side boundary setbacks should not be less than 1.5 metres." Hedge 1 forms a dense screen of vegetation akin to a 7-metre wall not only along the boundary, but extending up to a metre across the boundary.
If it is reasonable during development to consider and preserve existing solar access for an adjoining dwelling that relies on solar access for heating (as per the DCP), then it is equally reasonable for the landowner to consider and preserve the same when planting a hedge on their boundary. This supports the making of orders to prune trees in Hedge 1 and Hedge 2 to restore sunlight to windows W2-W5).
Other matters at s 14F are considered further below, following determination of the obstruction of views.

[7]

Whether trees severely obstruct a view from the dwelling

It is perhaps appropriate to firstly consider the overall view and its elements. The north-facing windows at the back of Ms Lock's dwelling have an expansive view across Lane Cove River to the suburbs of (from west to east) Riverview, Longueville and Northwood. Ms Lock stressed not only the value of the water view, but the value of the locally important part of the landscape view, being Riverview College. The view's foreground includes trees in the foreshore reserve adjoining the applicant's and respondents' properties, as well as trees in Ms Lock's own garden.
While the principal view from Ms Lock's dwelling is gained through the large north-facing windows at the back of her dwelling, secondary viewing points include through a north-facing window of an office near the front of the dwelling's first floor, and through west-facing windows of the main bedroom and ensuite.
When Ms Lock purchased her property in 2013, trees in Hedge 1 were maintained by the respondents at a shorter height. This is clear from photographs taken at the time. Ms Lock's dwelling was renovated in 2014, changing the location and
Ms Lock provided the following photograph showing the view to the northwest from the first-floor main bedroom in 2014, when her dwelling was being renovated.
Ms Lock provided another photograph showing the same outlook in 2023.
In 2023, Hedge 1 obstructed the left part of the 2023 view from that location. A jacaranda, behind and partly obscured by the hedge, is deciduous and loses its leaves for part of the year.
Mr Barwick included in his report two photographs from the main bedroom, copied below.
Ms Lock's photographs show the view to the northwest from the bedroom, accentuating the obstruction by Hedge 1. Mr Barwick's photographs aim more to the north and northeast, showing the remainder of the view and diminishing the obstruction caused by trees in Hedge 1.
This pattern is repeated with photographs from the ground-floor dining room, firstly with Ms Lock's photograph (the red line indicating her estimation of hedge height in 2012) followed by Mr Barwick's photograph.
Mr Barwick included a second photograph from the dining room aimed further eastward, without the trees in Hedge 1.
Mr Barwick found the view was expansive and that it is only the western section of the view that is obstructed by trees in Hedge 1. I accept this. With the benefit of the Court's onsite view, I observed that the impact of the trees in Hedge 1 is greater than captured in Mr Barwick's photographs. When standing at these windows, the proximity and density of the hedge is more overbearing. Even if other parts of the view remain, the tall and close wall created by the trees gives one a sense that a greater part of the view is concealed.
Ms Lock submitted that it is the higher ground of Riverview with its locally iconic college that is the more valued part of the view, now completely obstructed by trees in Hedge 1. I accept this is so. This is not to say that the view of the college should be considered alone (in a slicing up of the view), but that it elevates the value of the overall view. Its obstruction, therefore, diminishes the view's value.
Despite Mr Barwick's conclusion that obstruction of the view from the dining room (and its terrace) and the main bedroom (and its balcony) caused by trees in Hedge 1 was only minor to moderate, I find it is severe.
Mr Barwick found that trees in Hedge 2 caused a severe obstruction to views from the first-floor office, from the main bedroom's ensuite, and through the western window of the main bedroom. I agree with these findings.
In summary, I find that:

trees in Hedge 1 severely obstruct a view from the dining room and from the main bedroom; and
trees in Hedge 2 severely obstruct a view from the first-floor office, the main bedroom and its ensuite.

[9]

Matters considered when weighing the interests (both sunlight and views)

I have considered all matters at s 14F of the Trees Act. Those that are specific to sunlight or views are already addressed. Here I consider others that are relevant in these proceedings.
The trees are planted on the respondents' property close to the common boundary. The screen created by trees in Hedge 1 extends for up to a metre across the common boundary. Trees in Hedge 2 are close to the applicant's dwelling, including windows in the dwelling's western wall.
When Ms Lock purchased her property in 2013, trees in Hedge 1 were maintained by the respondents at a shorter height. This is clear from photographs taken at the time. Ms Lock's dwelling was renovated in 2014, changing the locations and sizes of windows. The trees in Hedge 2 were planted more recently. Having considered these factors, I am satisfied that sunlight was available to Ms Lock's windows at the time of her renovation, approximately to the extent shown in the shadow diagrams, and that the comparative shadow diagrams are an accurate representation of the sunlight lost to her since the trees were allowed to grow taller.
I am similarly satisfied, relying on the photographs Ms Lock provided, that the lower hedge height at the time she renovated her dwelling allowed for an expansive view that I now find to be severely obstructed by the trees.
Neither the applicant nor the respondents understood whether or not council consent would be required to prune the trees. Mr Ward, for the respondents, advised that the DCP allowed the following building clearance works without the need for council consent: "Limited to works that would provide a maximum clearance of 2 metres from a roof or from the external face of a building, together with pruning of branches that are less than 50mm in diameter at the branch collar." Mr Ward suggested that the applicant could therefore maintain the eastern face of trees in Hedge 2 at the boundary, should she wish. But the DCP also includes the following consent exemption for hedges: "annual maintenance involving pruning works of less than 500mm in relation to existing height, width or depth, and where branches to be pruned are less than 30mm in diameter." It follows that pruning more than 500 mm from the hedges' height, width or depth would require consent from Hunters Hill Council.
Now that the trees have reached 7 metres or more in height, and have been allowed to spread across the boundary, reducing them as per the orders sought by Ms Lock will significantly impact their amenity. The top and eastern face of Hedge 1 will be left with exposed woody branches with cut ends, no longer covered in foliage. This is not a desirable outcome, but is a result of the trees being allowed to reach their current size. Trees in Hedge 2 are younger and the adverse impacts of the pruning orders sought by Ms Lock would be less significant.
The trees contribute to privacy and to the respondents' landscaping, increasing the amenity of their property. The dense green screen provided by the trees, particularly those in Hedge 1, is a notable feature of their garden.
The respondents' privacy was a focal point of their evidence and submissions. Mr Barwick wrote: "The hedge is of significant importance to maintain privacy for the northern private open space of 6 Vernon Street. The dwelling at 8 Vernon Street has a first floor verandah with a level of RL 20.33. This verandah is wholly unscreened and assuming an average eye height of 1.6m results in a typical eye level of RL 21.93m. The reduction in the height of the hedge as proposed in the application before the Court would remove all of this privacy mitigation. Tree T1 is sought to be cut back to a height 3.8m above ground level. This equates to an RL of approximately RL 19.00m. As noted, this would be some 2.93m below the typical eye height of a person standing on the first floor balcony of 8 Vernon Street and providing a direct view down into the northerly private open space. This is an unacceptable privacy impact from an elevated unscreened balcony. As an observation I note that large projecting side boundary hedges can be observed on the boundaries between the dwellings at 10, 12 and 14 Vernon Street to the east of the subject hedge."
Ms Lock pointed out that the respondents' back garden, being the subject of the potential overlooking described by Mr Barwick, is open to the foreshore reserve, which is publicly accessible. We walked along this reserve during the onsite view. Mr Ward argued that the reserve, which contains vegetation, is lower than the respondents' land, so that direct sightlines into the garden are limited. I accept this, but I consider that the location and orientation of the respondents' garden makes their expectation for almost total privacy, from the applicant's property anyway, unreasonable.
I also note that the extent of overlooking described by Mr Barwick would only be available from the western end of the applicant's first floor balcony. The balcony spans that entire with of the dwelling, accessed via sliding glass doors from the main bedroom, a living area and two other bedrooms. There seems no reason for anyone to spend time at that end of the balcony rather than at other locations along its length, closer to doors and rooms.
Privacy for the Sidotis would be maintained to some extent with the hedge at a lower height as proposed by Ms Lock.
The hedges can be seen from public land north of these properties, so they contribute to public amenity, but this contribution is not significant. That is, the local landscape would not be significantly affected by pruning or removing the trees.
The trees provide some ecosystem services, but any contribution of the trees to environmental values is not significant.
Mr Ward pointed out other trees that obstruct the view. Those trees do not form a dense wall as the trees in these two hedges do. The jacaranda behind Hedge 1 loses its leaves for part of the year, whereas the hedges are evergreen.
Other features that obstruct sunlight to the applicant's windows, such as the respondents' own dwelling, have been considered above when determining whether the trees cause a severe obstruction.
Ms Lock has attempted to reach some agreement with the Sidotis. She has pruned overhanging parts of the trees in the past, but given their size she has found this to be onerous. Furthermore, on one occasion when her contractors pruned the trees, the Sidotis called the police.
The Sidotis have shown an unwillingness to compromise. The have planted a hedge along their boundary and allowed it to grow to a height of 7 metres. While they maintain their side of it, they leave the hedges' eastern face to Ms Lock. The eastern face of Hedge 1 extends significantly into Ms Lock's property. The impact is not insignificant.
Mr Ward pointed to other hedges along boundaries in the neighbourhood, suggesting that the situation is not unusual. Ms Lock stated that the hedge not far to the east was maintained on all sides by its owner, with agreement from their neighbour. While such cooperative arrangements are clearly possible, especially where both parties enjoy the trees' benefits, this is not the case here.
The respondents' expectation that the applicant should bear the cost of maintaining her side of the hedge is, in my mind, unreasonable, especially where the applicant finds the hedge impacts her enjoyment of her property in other ways.
Despite their knowledge of the impacts of Hedge 1 to Ms Lock, the respondents have planted Hedge 2 and shown no desire nor intent to maintain them at a height that would provide them with the trees' benefits while minimising their impact on the applicant.
In the orders she seeks, Ms Lock expresses her willingness to maintain her side of the hedges if the trees are at a lower height that would make this reasonable and possible.
The Court is required at s 14F(r) to consider: "the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed." Where Mr Barwick found that some trees cause a severe view obstruction, he noted that the view was across a side boundary. Mr Ward further noted that the main bedroom and ensuite are not living areas, so views from those rooms are less important. I accept this. But even considering those rooms, I find that the benefits to the applicant of making orders outweigh other matters considered above such as privacy and amenity. Furthermore, obstruction of sunlight and views was found to be severe for living areas including the kitchen and dining room.
At s 14F(s) of the Trees Act, the Court is to consider: "such other matters as the Court considers relevant in the circumstances of the case." The trees are planted as hedges and should be maintained as hedges. That is, even if a tree in one of the hedges is not causing a severe obstruction of sunlight or views, it would be appropriate to prune all trees in the hedge so as to maintain the hedge's amenity and function.

[11]

Orders

The Court orders: 1. The application is granted to the extent of the following orders. 2. For as long as trees T1-T7 remain on the respondents' property, in July of each year, beginning July 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune trees T1-T7 as follows: 1. reduce their height so that T1 is no higher than 3.8 metres above ground level and T7 is no higher than 4.2 metres above ground level (measured from ground level at the base of each tree), with the heights of trees T2-T6 evenly tapered along the hedge between T1 and T7; 2. reduce the northern face of T1 so it extends no further than 2.8 metres beyond the northern end of the existing timber paling fence (this may be done gradually over the first 2 years); 3. reduce the southern face of T7 so it extends no further south than the southern edge of the applicant's side entry door (W5); and 4. reduce the eastern face of trees T1-T7 so that no parts of the trees extend beyond the common boundary shared with the applicant. 1. For as long as trees T8-T16 remain on the respondents' property, in July of each year, beginning July 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune trees T8-T16 as follows: 1. reduce their height so that each tree is no more than 300 mm above the top of the common boundary fence; and 2. reduce the eastern face of these trees so that no parts of the trees extend beyond the common boundary shared with the applicant. 1. The works in Orders (2) and (3) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016. 2. The respondents are to give the applicant at least 7 days' notice of each occurrence of the works in Orders (2) and (3). 3. The applicant is to allow access to her property for each occurrence of the works in Orders (2) and (3) during reasonable hours of the day. 4. If the works in Orders (2) and (3) are not completed by the end of each July, the applicant may engage and pay for a suitably qualified horticultural contractor or arborist to carry out the pruning works specified in Orders (2) and (3) by the end of the following month. 5. If the applicant engages a contractor to carry out the pruning works as per Order (7), the applicant is to give the respondents at least 7 days' notice of the works. 6. If the applicant engages a contractor to carry out the pruning works as per Order (7), the respondents are to allow access to their property for the works during reasonable hours of the day. 7. If the applicant engages a contractor as per Order (7), the applicant may provide the respondents with a copy of a paid invoice for the works within 30 days of the works being completed. 8. If the respondents receive a copy of a paid invoice as per Order (10), within 14 days of its receipt they are to pay the applicant the invoice amount. 9. The exhibits are returned, except for Exhibit A.

[15]

Ms Lock's dwelling is over two levels, with windows at the back of the dwelling facing north and those along the side nearest the common boundary facing west.
In support of her submissions, Ms Lock relied upon shadow diagrams prepared in 2023 by Living Trends Designs Pty Ltd, other shadow diagrams, diagrams showing the path of the sun at the winter solstice, along with photographs, both recent and historic. The 2023 shadow diagrams Of Living Trends Designs (Exhibit C) show the extent of shadowing caused by trees in Hedge 1 in November 2012, as well as the additional shadowing caused by trees in Hedge 1 at their current (2023) height. It was noted that the tree height relied upon was not entirely accurate, but the difference is not significant in this decision. The Sidotis relied principally on Mr Barwick's report and onsite evidence. Mr Barwick did not prepare his own shadow diagrams, but referenced the applicant's diagrams in his analysis of the trees' obstruction of sunlight. As I said above, the Living Trends Designs shadow diagrams show only the impacts of trees in Hedge 1. By relying on those diagrams, Mr Barwick has drawn some conclusions that are not based on the existing situation, such as (at p 10 of Exhibit 1): "The material lodged by the applicant identifies that solar access to ground floor windows W1, W2 and W3 is not impacted by the hedge the subject of the dispute." However other material included in Ms Lock's claim (for instance: answers to questions in Form G in Exhibit A; the hedge diagram in Exhibit B) make it plain that trees in Hedge 2 also obstruct sunlight to some of these windows. While Mr Barwick's report might be the only expert report in these proceedings, and I give it considerable weight, I have given less weight to those of his conclusions that are not based on all available evidence.
Window W2, in the dwelling's west-facing side wall, provides light to the pantry. With only narrow side setbacks separating Ms Lock's dwelling from the Sidotis' two-storey dwelling, it is apparent to any observer that sunlight could only reach this window for a short period immediately after midday. Ms Lock suggested this period might be an hour. Despite Mr Barwick's statement regarding this window, quoted above, trees in Hedge 2 would cast shadow on W2. Trees in Hedge 2 do not yet form a dense screen - their shadows would not completely obstruct the window during this short period, but they would obstruct most of it, as Ms Lock has suggested.
To determine the extent of such an obstruction, the Court has relied upon qualitative terms such as those used at [28] in the view-sharing principle established in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140: negligible, minor, moderate, severe or devastating. Here, I differentiate between, firstly, the degree of sunlight obstruction to the window and, secondly, the impact of the obstruction on the applicant's enjoyment of her dwelling. The former is the test at s 14E(2)(a)(i) of the Trees Act, while the latter informs the determination at s 14E(2)(b) and is considered under s 14F. Because most of the available sunlight to W2 is obstructed by trees in Hedge 2, I find those trees cause a severe obstruction of sunlight to this window.
Window W3 is a side entry door near the pantry and kitchen. For the same reasons given above for W2, I find that trees in Hedge 2 severely obstructs sunlight to W3.
Window W4 is a long window to the kitchen. Ms Lock asserts that trees in both Hedge 1 and Hedge 2 cause a total obstruction of the 2.5 hours of sunlight that would, in their absence, be available to W4. Mr Barwick found otherwise, but did not appear to consider trees in Hedge 2, nor the shadow cast by Hedge 1 in the western elevation 1:00 pm shadow diagram (drawing A1.03 in Exhibit C). This obstruction is severe.
Trees in Hedge 1 obstruct all of the 3 hours of sunlight to the dining room window W5. Mr Barwick found this to be the case. This obstruction is also severe.
Unlike W2-W5, the north-facing glass doors to the dining room (W6) and living room (W7) receive winter sunlight during both morning and afternoon. Sunlight to W6 is partially obstructed by trees in Hedge 1 from around 1:00 pm and fully obstructed from around 1:30 pm. Mr Barwick found most of W6 received sunlight for 4 hours in winter and that W7, further from the hedge, received 5 hours of winter sunlight. I find sunlight to W6 and W7 is not severely obstructed by the trees.
Ms Lock does not claim that the trees severely obstruct sunlight to living room windows W8 and W9.
The trees' obstruction of sunlight to windows on the first floor (W10-W16) is significantly less than on the ground floor. Mr Barwick's findings on W10-W12 appear to ignore the shading from trees in Hedge 2.
Trees in Hedge 2 obstruct sunlight to the office window W10, facing west, for around half of the one hour of sunlight that this window might otherwise receive. Ms Lock is clearly concerned about the pending impacts of trees in Hedge 2 as they mature to form a dense screen like trees in Hedge 2, but the current obstruction might best be considered as minor.
Sunlight obstruction to the ensuite's W11 is similar to W10, so is also minor.
Ms Lock says trees in Hedge 2 obstruct approximately 2 out of the 3.5 hours of sunlight otherwise available to her main bedroom's west-facing window W12. Mr Barwick found otherwise but again appears not to have considered trees in Hedge 2. I consider this obstruction to be moderate, but not severe.
According to Ms Lock, and as shown in shadow diagrams, trees in Hedge 1 obstruct approximately 80% of the afternoon sunlight otherwise available to the main bedroom's north-facing glass doors W13. Mr Barwick found that the obstruction is not severe because W13 still receives up to 6 hours of winter sunlight. I agree with this and find the obstruction to W13 is minor.
The trees do not obstruct sunlight to the other north-facing windows on the first floor (14-W16).
In summary, I find that:
- trees in Hedge 1 severely obstruct sunlight to W5;
- trees in Hedge 2 severely obstruct sunlight to W2 and W3; and
- trees in Hedge 1 and Hedge 2 severely obstruct sunlight to W4.
On the applicant's application regarding sunlight obstruction, the test at s 14E(2)(a)(i) of the Trees Act would not prevent the Court making orders.

[48]

I have considered all matters at s 14F of the Trees Act. Those that are specific to sunlight or views are already addressed. Here I consider others that are relevant in these proceedings.
The trees are planted on the respondents' property close to the common boundary. The screen created by trees in Hedge 1 extends for up to a metre across the common boundary. Trees in Hedge 2 are close to the applicant's dwelling, including windows in the dwelling's western wall.
When Ms Lock purchased her property in 2013, trees in Hedge 1 were maintained by the respondents at a shorter height. This is clear from photographs taken at the time. Ms Lock's dwelling was renovated in 2014, changing the locations and sizes of windows. The trees in Hedge 2 were planted more recently. Having considered these factors, I am satisfied that sunlight was available to Ms Lock's windows at the time of her renovation, approximately to the extent shown in the shadow diagrams, and that the comparative shadow diagrams are an accurate representation of the sunlight lost to her since the trees were allowed to grow taller.
I am similarly satisfied, relying on the photographs Ms Lock provided, that the lower hedge height at the time she renovated her dwelling allowed for an expansive view that I now find to be severely obstructed by the trees.
Neither the applicant nor the respondents understood whether or not council consent would be required to prune the trees. Mr Ward, for the respondents, advised that the DCP allowed the following building clearance works without the need for council consent: "Limited to works that would provide a maximum clearance of 2 metres from a roof or from the external face of a building, together with pruning of branches that are less than 50mm in diameter at the branch collar." Mr Ward suggested that the applicant could therefore maintain the eastern face of trees in Hedge 2 at the boundary, should she wish. But the DCP also includes the following consent exemption for hedges: "annual maintenance involving pruning works of less than 500mm in relation to existing height, width or depth, and where branches to be pruned are less than 30mm in diameter." It follows that pruning more than 500 mm from the hedges' height, width or depth would require consent from Hunters Hill Council.
Now that the trees have reached 7 metres or more in height, and have been allowed to spread across the boundary, reducing them as per the orders sought by Ms Lock will significantly impact their amenity. The top and eastern face of Hedge 1 will be left with exposed woody branches with cut ends, no longer covered in foliage. This is not a desirable outcome, but is a result of the trees being allowed to reach their current size. Trees in Hedge 2 are younger and the adverse impacts of the pruning orders sought by Ms Lock would be less significant.
The trees contribute to privacy and to the respondents' landscaping, increasing the amenity of their property. The dense green screen provided by the trees, particularly those in Hedge 1, is a notable feature of their garden.
The respondents' privacy was a focal point of their evidence and submissions. Mr Barwick wrote:

[53]

Ms Lock pointed out that the respondents' back garden, being the subject of the potential overlooking described by Mr Barwick, is open to the foreshore reserve, which is publicly accessible. We walked along this reserve during the onsite view. Mr Ward argued that the reserve, which contains vegetation, is lower than the respondents' land, so that direct sightlines into the garden are limited. I accept this, but I consider that the location and orientation of the respondents' garden makes their expectation for almost total privacy, from the applicant's property anyway, unreasonable.
I also note that the extent of overlooking described by Mr Barwick would only be available from the western end of the applicant's first floor balcony. The balcony spans that entire with of the dwelling, accessed via sliding glass doors from the main bedroom, a living area and two other bedrooms. There seems no reason for anyone to spend time at that end of the balcony rather than at other locations along its length, closer to doors and rooms.
Privacy for the Sidotis would be maintained to some extent with the hedge at a lower height as proposed by Ms Lock.
The hedges can be seen from public land north of these properties, so they contribute to public amenity, but this contribution is not significant. That is, the local landscape would not be significantly affected by pruning or removing the trees.
The trees provide some ecosystem services, but any contribution of the trees to environmental values is not significant.
Mr Ward pointed out other trees that obstruct the view. Those trees do not form a dense wall as the trees in these two hedges do. The jacaranda behind Hedge 1 loses its leaves for part of the year, whereas the hedges are evergreen.
Other features that obstruct sunlight to the applicant's windows, such as the respondents' own dwelling, have been considered above when determining whether the trees cause a severe obstruction.
Ms Lock has attempted to reach some agreement with the Sidotis. She has pruned overhanging parts of the trees in the past, but given their size she has found this to be onerous. Furthermore, on one occasion when her contractors pruned the trees, the Sidotis called the police.
The Sidotis have shown an unwillingness to compromise. The have planted a hedge along their boundary and allowed it to grow to a height of 7 metres. While they maintain their side of it, they leave the hedges' eastern face to Ms Lock. The eastern face of Hedge 1 extends significantly into Ms Lock's property. The impact is not insignificant.
Mr Ward pointed to other hedges along boundaries in the neighbourhood, suggesting that the situation is not unusual. Ms Lock stated that the hedge not far to the east was maintained on all sides by its owner, with agreement from their neighbour. While such cooperative arrangements are clearly possible, especially where both parties enjoy the trees' benefits, this is not the case here.
The respondents' expectation that the applicant should bear the cost of maintaining her side of the hedge is, in my mind, unreasonable, especially where the applicant finds the hedge impacts her enjoyment of her property in other ways.
Despite their knowledge of the impacts of Hedge 1 to Ms Lock, the respondents have planted Hedge 2 and shown no desire nor intent to maintain them at a height that would provide them with the trees' benefits while minimising their impact on the applicant.
In the orders she seeks, Ms Lock expresses her willingness to maintain her side of the hedges if the trees are at a lower height that would make this reasonable and possible.
The Court is required at s 14F(r) to consider: "the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed." Where Mr Barwick found that some trees cause a severe view obstruction, he noted that the view was across a side boundary. Mr Ward further noted that the main bedroom and ensuite are not living areas, so views from those rooms are less important. I accept this. But even considering those rooms, I find that the benefits to the applicant of making orders outweigh other matters considered above such as privacy and amenity. Furthermore, obstruction of sunlight and views was found to be severe for living areas including the kitchen and dining room.
At s 14F(s) of the Trees Act, the Court is to consider: "such other matters as the Court considers relevant in the circumstances of the case." The trees are planted as hedges and should be maintained as hedges. That is, even if a tree in one of the hedges is not causing a severe obstruction of sunlight or views, it would be appropriate to prune all trees in the hedge so as to maintain the hedge's amenity and function.

[55]

(1) The application is granted to the extent of the following orders.

(2) For as long as trees T1-T7 remain on the respondents' property, in July of each year, beginning July 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune trees T1-T7 as follows:

(a) reduce their height so that T1 is no higher than 3.8 metres above ground level and T7 is no higher than 4.2 metres above ground level (measured from ground level at the base of each tree), with the heights of trees T2-T6 evenly tapered along the hedge between T1 and T7;

(b) reduce the northern face of T1 so it extends no further than 2.8 metres beyond the northern end of the existing timber paling fence (this may be done gradually over the first 2 years);

(c) reduce the southern face of T7 so it extends no further south than the southern edge of the applicant's side entry door (W5); and

(d) reduce the eastern face of trees T1-T7 so that no parts of the trees extend beyond the common boundary shared with the applicant.

(3) For as long as trees T8-T16 remain on the respondents' property, in July of each year, beginning July 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune trees T8-T16 as follows:

(a) reduce their height so that each tree is no more than 300 mm above the top of the common boundary fence; and

(b) reduce the eastern face of these trees so that no parts of the trees extend beyond the common boundary shared with the applicant.

(4) The works in Orders (2) and (3) must be carried out in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

(5) The respondents are to give the applicant at least 7 days' notice of each occurrence of the works in Orders (2) and (3).

(6) The applicant is to allow access to her property for each occurrence of the works in Orders (2) and (3) during reasonable hours of the day.

(7) If the works in Orders (2) and (3) are not completed by the end of each July, the applicant may engage and pay for a suitably qualified horticultural contractor or arborist to carry out the pruning works specified in Orders (2) and (3) by the end of the following month.

(8) If the applicant engages a contractor to carry out the pruning works as per Order (7), the applicant is to give the respondents at least 7 days' notice of the works.

(9) If the applicant engages a contractor to carry out the pruning works as per Order (7), the respondents are to allow access to their property for the works during reasonable hours of the day.

(10) If the applicant engages a contractor as per Order (7), the applicant may provide the respondents with a copy of a paid invoice for the works within 30 days of the works being completed.

(11) If the respondents receive a copy of a paid invoice as per Order (10), within 14 days of its receipt they are to pay the applicant the invoice amount.

(12) The exhibits are returned, except for Exhibit A.

Lock v Sidoti

At a glance

Court

Decision date

Source

Judgment (57 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)