Lydiard v Rollason

Land and Environment Court (NSW)|2011-12-07

M Staunton (Respondent) File Number(s): 20748 of 2011

Judgment 1ACTING COMMISSIONER: Rockwall House is an historic property in Potts Point. Ms Rollason, its owner and the respondent in this matter, uses the house as a private residence. The property includes a garden with established trees. To the east of the property is a block of apartments. The owner of one of those apartments, Ms Lydiard, claims that she has lost access to views from, and sunlight to, her dwelling as a result of trees in three hedges in the garden of Rockwall House. She seeks the removal of some of these trees and the pruning of others. 2Ms Lydiard claims that: (a)Hedge 1 obstructs sunlight to her two windows and should be pruned to a height no greater than 4 m. (b)Hedge 2 obstructs sunlight to and views from her two windows and that part of this hedge should be pruned to a height of no more than 4 m, and part of this hedge should be removed. (c)Hedge 3 obstructs sunlight to and views from her two windows and should be removed. 3Ms Lydiard also wants any new or existing plantings along two boundaries of Rockwall House to be maintained at a height no greater than 4 m. 4Ms Rollason submits that Hedges 2 and 3 are not hedges and that trees in Hedge 1 do not severely obstruct sunlight to, or views from, Ms Lydiard's dwelling. 5Ms Rollason also submits that the Court cannot make orders regarding future plantings. 6The orders that Ms Lydiard seeks differ from those in her application, as she now contends that additional trees obstruct sunlight. 7Ms Rollason claims that the Court should only consider the orders submitted in the application as she has not had an opportunity to respond to the claims of the additional obstruction of sunlight by these trees. 8Ms Rollason submits that Ms Lydiard did not make reasonable effort to reach agreement with her about issues regarding the trees. 9The parties disagree on the size of the trees at the time that Ms Lydiard purchased her property. 10The application to the Court is made under Part 2A of the Trees (Disputes Between Neighbours) Act 2006. To determine what orders, if any, the Court should make, I must determine: (a)Did Ms Lydiard make reasonable effort to reach agreement with Ms Rollason? (b)Do the trees form hedges? (c)If they do form hedges, do they severely obstruct sunlight to Ms Lydiard's windows or views from her dwelling? (d)If they do create a severe obstruction of sunlight or views, what orders would be appropriate? (e)Should an obstruction of sunlight be considered for trees T1, T2, T3, T4, T5, T9, T9A, T11 and T12 in addition to the obstruction of views by these trees as claimed in the original application? (f)Can the Court make orders regarding future plantings?

On-site view 11The hearing began on-site with a viewing of the trees within Ms Rollason's garden. I used a height pole to measure the shortest and tallest trees in Hedge 1. Mr Staunton, Counsel for Ms Rollason, took us to the southern boundary of Rockwall House and showed us other established trees along its length. As privacy is a matter to be considered, he also took us to an upstairs bedroom and bathroom to observe the screening that the trees offer between Rockwall House and apartments to the east, including Ms Lydiard's apartment. 12Ms Pearman, Counsel for Ms Lydiard, then took us to Ms Lydiard's apartment. Ms Pearman showed us the trees and indicated to us what she submits is the obstruction of sunlight and the obstruction of views.

What are the jurisdictional tests? 13There are several jurisdictional tests that must be satisfied before the Court can make any orders.

Did the applicant make a reasonable effort to reach agreement? 14Mr Staunton claims that, as the correspondence to his client included in the application was not from Ms Lydiard, the Court cannot make orders as s 14E(1)(a) of the Act is not satisfied. That section of the Act states that the Court must not make an order unless satisfied that "the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated". 15This issue has been raised by some respondents in other matters brought to the Court under the Act. The Court has consistently taken the view that the communication required between the parties in the process of coming to Court is sufficient by the time of the hearing to satisfy this jurisdictional test. Fakes C outlined the Court's approach in paragraphs [40] to [45] in Ball v Bahramali & Anor [2010] NSWLEC 1334. 16There was nothing presented that convinced me to change the Court's approach in this matter.

Do the trees comprise a hedge? 17According to s 14A(1), Part 2A of the Act applies only to groups of two or more trees that: (a)are planted so as to form a hedge, and (b)rise to a height of at least 2.5 metres above ground level. 18All of the trees that are the subject of this application are at least 2.5 m tall. 19That the trees were "planted" was not called into question. Ms Rollason states in her affidavit of 2 September 2011 that she planted all the trees in the year 2000. 20The term "so as to form a hedge" has been discussed, debated and dissected in matters heard by the Court. Moore SC and Hewitt AC were satisfied in Wisdom v Payne [2011] NSWLEC 1012 at paragraph [45] that this phrase meant that "...there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered." They stated that although there does not have to be one single, perfectly straight line of trees, the impression given by the planting must be one that would be called a hedge, according to the word's meaning in common language. 21This is the test I shall apply here: if an ordinary person walked into the garden of Rockwall House, would they, upon looking at the trees, be likely to regard them as a hedge? 22Ms Lydiard submitted the site plan below showing the trees that are the subject of this application.

Hedge 1 23Hedge 1 of the application comprises 25 trees (T15 to T39) of a single species. 24The Leyland Cypress trees are planted in a straight line along the boundary at close and regular spacing. They are clearly planted so as to form a hedge and if a person was brought in from the street and asked to point to a hedge it is most likely that they would point to these trees. 25The height of the trees ranges from 3.8 m tall in front of Ms Lydiard's apartment to approximately 8 m tall further to the north. This is due to different growing conditions. It is apparent that the trees were planted at the same time with the intention of forming a regular row. 26I am satisfied that Hedge 1 is "planted so as to form a hedge".

Hedge 2 27This element of the application comprises four trees (T11 to T14) of three different species planted several metres to the west of Hedge 1. The planting arrangement is roughly linear with slightly irregular spacing between the trees. From the south the trees are two evergreen alders (T11 and T12), a fiddlewood (T13) and an evergreen magnolia (T14). Their canopies are interlocking. The canopy forms (shape and density) of T13 and T14 are, to some extent, distinctive from each other and from the two alders. 28Ms Lydiard's submission is that the trees are planted in a linear and regular arrangement, that their canopies are joined, and thus they form a hedge. 29Ms Rollason's submission is that, in contrast to the Cypress trees in Hedge 1, trees T13 and T14 are different species planted at some distance from each other; that they are not planted so as to form a hedge. 30Although there are three different species, the overall form of this group of four trees does result in a linear row of interconnected canopies. In my view, it is possible that a person looking at this row of trees might call them a hedge. 31As a result, I conclude that trees T11 to T14 satisfy the test under s 14A(1)(a).

Hedge 3 32The third element of the application comprises eight trees (T1, T2, T3, T4, T5, T9, T9A and T10) of four different species planted in the southern section of the garden. Tree T10 is included as part of this hedge although no orders are sought regarding this tree. 33Trees T6, T7 and T8 were identified by Ms Pearman as being a separate hedge over which no orders are sought. 34Ms Pearman submits that two relatively straight lines can be drawn through these eight trees and that they form a hedge. 35Mr Staunton submits that these trees have not been planted in a regular or linear arrangement and do not form a hedge. 36I accept Mr Staunton's position, as both the onsite view and observation of the plans show the eight trees form an irregular planting that is not linear. It comprises four different species planted in an irregular formation with various spacings between the trees. 37My conclusion is that this group of trees has been planted so as to form a copse, rather than a hedge. 38Any one of these factors considered in isolation may not lead me to the same conclusion. For instance, four different species used in a very regular and linear planting may form a hedge. Each planting needs to be considered on its own characteristics. Rather it is the combination of factors that makes, in my mind, the planting a copse and not a hedge. In my view, a person coming in from the street would not be likely to call this group of trees a hedge. 39As I do not accept that these trees satisfy the test under s 14A(1)(a), this part of the application is dismissed. Ms Pearman makes extensive submissions regarding the obstruction created by these trees so, despite my dismissal of this part of the application, their contribution to any obstruction will be considered below.

Do any trees severely obstruct sunlight or views? 40According to s 14E(2) of the Act, the Court must not make an order 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. 41I will consider each element of the application in turn.

Hedge 1 42Ms Lydiard submits that trees T15 to T39 severely obstruct sunlight to windows W1 and W2. 43W1 and W2 face west and are the only windows to Ms Lydiard's apartment. The open plan living area has the kitchen on the northern side, where W1 is situated, and the dining or living area on the southern side, where W2 is situated. The lounge area is to the east, further away from the windows, and the main bedroom is east of that.

Hedge 1 - Sunlight 44In her two affidavits and in answers to her Tree Dispute Claim Details (High Hedges) Ms Lydiard submits that the two windows do not receive any direct sunlight during winter and only dappled light during summer. 45No shadow diagrams showing the shadow effects of the trees have been submitted by either party. Ms Lydiard relies on a 1995 shadow diagram that does not show any trees, along with the site view, photographs taken recently and some time ago, and the oral evidence of herself, Mr Bradford and Mr Birdsall. 46Ms Pearman submits that shadow diagrams should not be necessary, referring to Pham v Papaioannou [2011] NSWLEC 1044, where, at (17), Commissioner Brown and I relied upon our own "understanding of the movement of the sun, particularly in midwinter [and] the orientation of the site". In that case there was a single hedge and the assessment of obstruction of sunlight was relatively straightforward. 47In the case before me, I must consider each hedge, and any obstruction it causes to sunlight, separately from other hedges. There are also other factors that may contribute to an obstruction of sunlight, such as a balcony immediately above the windows. Properly prepared shadow diagrams would be of some assistance. 48Ms Lydiard, Mr Bradford and Mr Birdsall all gave evidence about the amount of sunlight that reached the windows prior to the growth of the trees. All contend that, prior to 2006, the windows were in direct sunlight all afternoon beginning at some time between 12 noon and 1:30 p.m. 49The five trees (T15 to T19) in front of the balcony are around 3.8 to 4 m tall. They barely reach the top of the glass panelling on the balcony. They are not as tall as the windows and cannot cause any obstruction of sunlight to the windows. 50Trees T20 to T39 are to the north of Ms Lydiard's apartment. Ms Pearman submits that all these trees cause an obstruction of sunlight to the windows. Mr Staunton submits that there is no evidence that the trees cause such an obstruction. 51At the onsite view, looking to the north from W1, I could only see trees T20 to T25. On my assessment, trees further north than that would cause little or no obstruction of sunlight to the window. Trees T20 to T25 would not obstruct sunlight to the window during summer but may cause some obstruction during winter while the sun is in the northern part of the sky. However any obstruction caused by these trees alone would not begin until well after midday, as the building's orientation, and the presence of overhead balconies, would prevent sunlight reaching the window until then. The trees could only cause obstruction for a limited time, even in mid-winter, as they are sufficiently north of the window that the late afternoon sun would be far enough to the west for direct sunlight to reach the window. I could not be satisfied that trees in Hedge 1 are severely obstructing sunlight to Ms Lydiard's window. This element of the application is dismissed.

Hedge 2 52Ms Pearman submits that trees T13 and T14 obstruct sunlight to W1 and W2, and that trees T11 and T12 obstruct sunlight to, and views from, W1 and W2. Mr Staunton submits that no evidence of such obstruction has been provided and that, in regard to sunlight, there are other factors such as the overhead balcony and that the limited period of any obstruction prevents it from being 'severe'.

Hedge 2 - Sunlight 53The trees range in height from approximately 12 m tall (T13 and T14) to approximately 15 m tall (the alders T11 and T12). Their height and position is such that they would obstruct sunlight to W1 and W2 for most of the afternoon for a significant part of the year. Photos that are part of Ms Lydiard's affidavit (Exhibit C) demonstrate this obstruction. 54My Lydiard submitted other photographs taken at an earlier time, perhaps as early as 2003, by or for a real estate agent for advertising purposes. She submits that, in contrast to the recent photographs, these photographs demonstrate the amount of sunlight that used to enter her apartment through W1 and W2. The pictures do indeed show sunlight coming in through the windows and there is no contention that, at least for some period, sunlight reached the two windows. Mr Staunton submitted that a lighter area on a chair in one photograph shows that the photographs have been manipulated or enhanced, perhaps digitally, to make the apartment look lighter. It does appear to me that the photo has been manipulated and I accept Mr Staunton's submission. Given that I am unsure to what extent other elements of the photographs have been manipulated, I do not rely heavily on the photographs as evidence of the appearance of the apartment in 2003. I do, however, accept that sunlight reached W1 and W2 for a few hours in the afternoon, even in winter. Trees in Hedge 2 now prevent this. The test at s 14E(2)(a)(i) is satisfied. 55There is a further test which must be satisfied at s 14E(2)(b) of the Act, which states: 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. 56Section 14F lists such matters that the Court is to consider. I consider the following matters are relevant. (a)Trees T11 to T14 are planted some distance from the boundary. Trees T13 and T14 are planted a considerable distance from Ms Lydiard's dwelling. (b)There is some contention regarding when the original building, which was of commercial use, was converted to apartments, but it seems likely that it was no earlier than late 2000. The Strata Plan is dated September 2000. Ms Rollason planted the trees in 2000. I conclude that the trees existed just prior to the dwelling. (c)With regard to the height of the trees when Ms Lydiard first occupied her dwelling in early 2006, she gave evidence that the trees were below her balcony. Others recall that the trees were relatively short. Mr Birdsall recalls that the Magnolia was less than 2 metres tall in 2005. Based on my own knowledge of the growth rates of trees, I find much of the evidence unsatisfactory, as it would mean that the trees grew less than half a metre per year for the first five years of their lives but have grown at 2 metres per years in the last five years. The tops of trees in Ms Rollason's garden can be seen in photographs taken from within the apartment in 2003. They were clearly taller than 2.5 metres. I conclude that the trees were taller than 2.5 metres when Ms Lydiard bought her apartment. (d)Interference with the trees would, in the absence of s 6(3), require consent under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 . No such consent has been obtained. (e)Ms Pearman submits that the tree planting does not conform to the development consent. The approved plans include a notation that the landscape is to be 'refurbished'. Ms Pearman contends that the plantings do not replicate earlier versions of the landscape. 'Refurbish' can mean either to restore or to renew. There was little evidence provided of the earlier plantings present anyway, so I reject Ms Pearman's proposition. (f)There is no evidence that the trees have any historic, cultural, social or scientific value. (g)The trees make little contribution to the local ecosystem and biodiversity. (h)The trees contribute to the natural landscape and scenic value of the land and the locality. I regard this as particularly important given the heritage value of Rockwall House. The house does not sit alone, but is surrounded by a garden that can and should enhance its value. (i)The trees can be seen from the street and have intrinsic value to public amenity. (j)There does not appear to be any significant impact of the trees on soil stability, the water table or other natural features. (k)Ms Lydiard seeks the removal of trees T11 and T12 and the pruning and maintenance of trees T13 and T14 at a height of no more than 4 metres. Pruning the trees to 4 metres height, from their current height of 12 metres or more, would destroy their natural form, leave large wounds in their stems and primary limbs, and shorten their life expectancies. Such pruning would not conform to the Australian Standard for Pruning of Amenity Trees (AS 4373-2007). I would not make orders for pruning the trees in this way. (l)The trees contribute significantly to privacy, landscaping garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated. This is discussed further below. (m)The apartment building itself contributes to an obstruction of sunlight, as it prevents sunlight reaching the two windows until early afternoon. The balcony above Ms Lydiard's windows would also appear to obstruct the sunlight for a short time in the early afternoon. (n)Neither party has taken any steps to rectify the obstruction. (o)Sunlight is obstructed throughout the year. It is obstructed for several hours in the afternoon. (p)All the trees are evergreen. There is no time of the year that the trees have less or no leaves. (q)The nature and extent of any views is considered elsewhere. (r)The windows are to the living area of the apartment and are the only windows to the apartment. (s)There are no other matters I consider relevant here. 57With regard to sub-clause (l) above, I find that the trees contribute significantly to privacy. Ms Rollason states that she planted trees in the garden for this reason, as Rockwall House is surrounded by several apartment buildings. Trees T11 to T14 afford a considerable amount of screening between the residence and garden of Rockwall House and several apartments, including Ms Lydiard's. Ms Rollason pointed out the adhesive frosting on the windows to her upstairs bedroom and bathroom, put there for privacy. However, looking out through the open windows of Rockwall House it was clear that other apartments higher up than Ms Lydiard's have a direct line of sight to the bedroom and bathroom. It seems to me that the frosting would be required for privacy even if the trees remain untouched. Removing or pruning the trees may increase the number of dwellings that overlook Rockwall House, rather than creating new overlooking in areas that are currently private. 58In light of the matters described above, I consider that any orders to remedy, restrain or prevent the obstruction of sunlight should minimise the impact on the amenity and privacy that the trees contribute to Rockwall House. Reducing any of the trees to 4 m in height would have an adverse impact on the trees. Removing all four trees would have a severe impact on amenity and privacy. Removing the two trees closest to Ms Lydiard's windows, trees T11 and T12, would allow sunlight to reach the two windows for at least part of the day during some of the year, while minimising the impacts on privacy and amenity for Rockwall House.

Additional consideration 59Mr Staunton submits that his client did not have opportunity to respond to issues of sunlight regarding trees T11 and T12, as these issues were not raised in the application, but were first pressed at the hearing. Sunlight was, however, pressed in the application regarding other trees, for instance trees T13 to T39, yet the substance of Ms Rollason's submissions regarding this issue was anecdotal and did not rely on shadow diagrams or any expert evidence. It therefore seems unlikely that such evidence would have been obtained for the additional two trees, and therefore unlikely that there would be anything that would change my conclusions regarding trees T11 and T12.

Hedge 2 - Views 60Ms Lydiard contends that trees in Hedge 2 obstruct a view, that view being Rockwall House, from both windows. I note that a considerable part of the canopies of the trees directly in front of the windows, T11 and T12, is now higher than the windows and any view of Rockwall House is only partially obstructed by stems and branches lower in the canopies. 61Ms Pearman contends that Rockwall House, being an iconic property with heritage value, is therefore an iconic view. I reject this proposition. Just because something is 'iconic' in one regard does not make it so in all others. An iconic car does not necessarily become an iconic view. 62Mr Staunton submits that if Rockwall House is iconic, its value is to the public. Any view entitlement is to the public from public spaces. I accept that Ms Lydiard does not have a right to a view of a single property, iconic or not. 63Furthermore, the issue of privacy has been discussed above. From Ms Lydiard's apartment, any view of Rockwall House is potentially a view into the house. I can see no reason why this should be the intent of any orders made by the Court. 64In summary, I do not accept that trees in Hedge 2 severely obstruct a view. However, even if I found otherwise, the matters to be considered in s 14F(l), especially privacy, outweigh any benefits to removing any obstruction on grounds of views, and I would not make orders to interfere with the trees on these grounds.

Hedge 3 - Sunlight 65For reasons stated earlier, I do not consider that these eight trees form a hedge. However, had I accepted Ms Pearman's submission that they do form a hedge, the trees are at the south side of Ms Rollason's garden. They would not obstruct sunlight to the two windows during winter. The extent of any obstruction during summer was not demonstrated. I would not make orders to interfere with these trees on grounds of sunlight without further substantiation of the claimed obstruction.

Hedge 3 - Views 66Ms Lydiard claims that these trees obstruct views she had of the city skyline. Such views would have been through a narrow corridor between Rockwall House and the building to the south, which I think is called Rockwall Gardens. The view would have been limited. At the on-site view, Mr Staunton pointed out other large trees further to the west. He submits that those trees would block any view, regardless of trees closer to Ms Lydiard's apartment. I find this to be very likely. Removing the eight trees in this part of the application would not, as far as I can determine, restore any view of the city skyline. Had I accepted that these trees form a hedge, I would not make any orders for their removal.

Future plantings 67Under this Part of the Act, the Court has jurisdiction to make orders over trees that are planted and are above a certain height. It follows that the Court does not have jurisdiction over future plantings.

Conclusions 68I am not satisfied that trees in Hedge 1 are severely obstructing sunlight to the two windows. 69I am satisfied that trees in Hedge 2 are severely obstructing sunlight; however they also provide considerable privacy and amenity. On balance, I find that removal of two trees would partially remedy the obstruction without impacting too severely on the trees' overall benefits. 70I am not satisfied that trees in the third element of the application form a hedge, as their planting arrangement is too irregular and not in a linear fashion. However, even if the trees do form a hedge, I do not consider that their removal would restore sunlight or views to any considerable extent.

Orders 71Considering all of the foregoing, the orders of the Court are: (1)The respondent, Ms Rollason, is to remove trees T11 and T12 within 60 days of the date of these orders. D Galwey Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2011

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