Maurici v Kaldor

Land and Environment Court (NSW)|2024-02-22

The Application seeks orders in respect of damage

As a consequence of damage to property or risk of injury, the Application seeks orders in the following terms: The 1st and 2nd Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of these orders: Prune Tree T1 and remove any portion of the tree overhanging 66 The Point Road, Woolwich. Remove Trees T2 to T5 Prune the Bamboo hedge T6 to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging 66 The Point Road, Woolwich. Prune Trees T7 to T9 to a height of no greater than 1.8 metres from the ground level and remove any portion of the trees overhanging 66 The Point Road, Woolwich Remove Trees T11 to T13 Remove those parts of Bamboo hedge T14 growing on their property. The Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of these orders: Remove those parts of Bamboo hedge T14 growing on the 3rd Respondent's property Remove Trees T15 to T17. Remove Trees T18 to T22. Until such time as the trees T1, T6 and T7 to T9 are permanently removed, biannually from the anniversary of the date of these orders, the 1st and 2nd Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of that anniversary: Prune Tree T1 and remove any portion of the tree overhanging 66 The Point Road, Woolwich. Prune the Bamboo hedge T6 to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedges overhanging 66 The Point Road, Woolwich. Prune Trees T7 to T9 to a height of no greater than 1.8 metres from the ground level and remove any portion of the trees overhanging 66 The Point Road, Woolwich. The 1st and 2nd Respondents are restrained from planting trees, Bamboo or any other plants on the underpinned sandstone outcrop on the common boundary, where Trees T11 to T13 are currently located, to prevent injury to persons and property. The Respondents are restrained from planting trees, Bamboo or any other plants on the common boundary, where Trees and Bamboo T14 to T22 are currently located, that have a mature height greater than 1.2m above natural ground level, to prevent injury to persons and property. Within 90 days of the date of these orders, the 1st and 2nd Respondents are at the Respondent's cost to engage a suitably qualified fencing contractor with appropriate insurances to replace that part of the boundary paling fence damaged by Trees T2 to T5 for a distance of a minimum of 12m and taken to the nearest upright fence post with the same materials and to the same height as existing along the common boundary. The Respondents pay to the Applicant the cost of remediation and replacement of damaged ceilings to Bedroom 1 and Bathroom identified in the Report of 22 May 2023 by VA Sciences for an amount of $25,734.50, within 14 days of the date of these orders. The Respondents are to give the Applicant 7 days' written notice of their intention to commence of the works ordered in paragraphs 1, 2 and 5 above. All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. The Applicant is to allow any access reasonably required to complete and clean up the works ordered above during reasonable hours of the day, provided that such access will not lead to damage to any property at 66 The Point Road, Woolwich. The Respondents pay the Applicants costs of these proceedings.

Debris causes blockage to drainage of the tennis court

The Applicant contends that plant growth, leaf fall and other debris from T1, and T2-T5 has caused, and is likely to cause, damage to a proposed fence to be constructed around the proposed tennis court, to stormwater drainage in the same area, to the eaves of the dwelling currently under construction, and to the Applicant's own landscape planting along the boundary.
The Applicant relies on images of leaf litter obstructing stormwater drainage (Exhibit B, Tab E, photos 6 and 7). The damage asserted by the Applicant is described as functional, and not physical damage (Exhibit C, par 120) because it requires an extraordinary level of maintenance.
When leaf litter impedes effective drainage, overland flow results that finds its way into the inclinator pit to the north which, in turn, cause the inclinator pit pump to fail.
To this end, the Applicant provides a letter from D2M Inclinator Services dated 3 August 2023 (Exhibit B, Tab L) advising of a risk from a 'steady flow of debris' that could clog the sump pump and cause the inclinator car to become submerged, damaging the safety speed governor and electrical components in the car.
Relatedly, stormwater overflow that does not drain to the pits located on the tennis court also bypasses the detention tank that is otherwise designed in accordance with an earlier consent.
The Applicant seeks orders for the Kaldors to remove T1-T5 and to prune the Bamboo hedge (T6) to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging No 66.
The Kaldors' arborist, Mr Gatenby observes that leaf litter and debris is also likely to originate from trees on the Applicant's property, including the Port Jackson Fig that is agreed by all to be either diseased or dying.
According to Mr Gatenby, this may be because a 12m Tree Protection zone required by the relevant conditions of consent, has not been provided (Exhibit 4, pars 4.4.17). Whether or not this is the case, Mr Gatenby notes that most of the leaf canopy to the Fig has been shed, with the obvious result being its collection on the tennis court, and conveyance into the drainage system.
In respect of the proposed tennis court fence, the Kaldors position is that the tennis court fence is not on the land as it is required to be by s 7 of the Trees Act. Instead, the fence is merely proposed and the Court does not make orders where it is a matter of speculation as to whether something may materialise in the future.

Damage to fence on boundary

At the onsite view, the Court's attention was directed to the timber paling fence located between the properties in the vicinity of Trees T2-T5. It is in this location that the Applicant contends those trees displaced and pushed over an earlier fence (Exhibit C, par 119).
Mr Kaldor's evidence is that T2 and T3 were in place at the time the Kaldors purchased the property on 25 February 1986. Tree T4, comprising seven small, suppressed Lilly Pilly's, were planted by the Kaldors in or around 1987, and now provide privacy to the ground floor guest room.
The Applicant submits that privacy to ground floor windows at No 64 is provided by the combination of a timber paling fence that is set upon the top of a concrete wall, depicted in Photo 1 (Exhibit B, Tab E) that, together, create a visual barrier that is greater than the height of a person standing on the tennis court at No 64.

Mould is alleged to cause damage

At the onsite view, the Court was taken to three rooms within the dwelling under construction at No 66 to observe what was described as evidence of mould.
In his statement, the Applicant (Exhibit C, pars 73-78) describes the growth of T14-T22 as a 'cave' of vegetation that has increased humidity and blocked sunlight, contributing to mould in certain west facing rooms of the dwelling under construction.
The Court was assisted by expert evidence in considering the possible contributing factors that may have led to the mould growth observed.
The Applicant relies upon the agree position of mould experts in a joint expert report prepared by Mr Andrew Orfanos and Mr Jonathan Dashper of VA Sciences dated 22 May 2023 (VA Sciences Report) (Exhibit B, Tab H) that identifies the following locations within the property at No 66 where mould is evident: 1. Lower ground floor Bedroom 1 (hereafter agreed to be referred to as the Study); 2. Lower ground floor Bathroom; 3. Ground floor Laundry.
The Kaldors engaged Dr Craig Simpson, Occupational Hygienist, to prepare a single expert report (Exhibit 2), which likewise identifies the presence of mould in two locations; 1. Ground floor Laundry, with evidence of mould growing on the ceiling 2. Lower ground floor bedroom, bathroom and study with scattered patches of light mould growth in a number of large areas on the ceiling and walls, due to atmospheric moisture.
I note here that the experts also assisted the Court by preparing handwritten notes in the form of a supplementary joint expert report (Exhibit M) that agreed the following: 1. Locations as to where the mould is present, and in what concentrations. 2. There is a low risk of injury to a person of average health occupying those rooms identified with mould, if not within vulnerable categories of a person who is immune-compromised, pregnant or very old. 3. The mould within the study and the bathroom are a result of atmospheric conditions. 4. No structural damage results from mould growth. 5. Removal of Trees T11-T22 would increase sunlight hitting the western façade and air ventilation within the immediate area that would have the effect of lowering humidity.
Dr Simpson concludes a significant driver of mould growth in the study is the decision to site the inclinator next to it, at the bottom of which is a pool of water. Other environmental drivers that may contribute are the shading of trees and lack of a regular cleaning regime and ventilation one would usually associate with occupation of a dwelling. Natural ventilation is limited, and air conditioning has not been turned on. Both forms of air flow would be expected to avoid conditions that favour mould growth.
When Dr Simpson refers to the inclinator, I understand this encompasses a large concrete wall located to the west of the inclinator that appears in his report at Photo 3, taken looking south, reproduced below:
Photo 4, from the same report, but taken looking northwards, is also re-produced below:
Mr Dashper, a co-author of the VA Sciences Report, believes a key driver of mould growth is due to tree growth that traps moisture along the western boundary, and prevents surfaces from receiving sunlight, and airflow, that, if received to a greater extent, would serve to dry out those surfaces. The VA Sciences Report identifies locations where measurement of relative humidity were taken. In summary, humidity was considered to be elevated in the vicinity of Trees T14-T22 where trees touch the dwelling under construction on No 66. However Mr Dashper states no measurement was taken outside the Study to determine the relative humidity in this location.
As such, the relative humidity of the external area outside the study, and in the vicinity of the inclinator, is unknown.
Mr Dashper also acknowledges the assumptions in the VA Sciences Report, at par 2.1.3 and 2.1.4, are informed by the Applicant's brief that Trees T11-T22 were planted between 2018 and 2021 and that no trees existed prior to this time.
I note that the brief recorded by Mr Dashper does not include reference to a date on which the inclinator and large concrete wall on the boundary were constructed. However, when asked, Mr Dashper's oral evidence is the large concrete wall to the west contributes to the mould growth by obstructing sunlight, but it is the trees that restrict airflow.
Mr Dashper considers mould growth found in 2022 to be evidence that the mould growth is substantial and has, since 2018 when Trees T11-T22 were planted, now penetrated into the plasterboard.
The experts concur that the long term consequence of mould growth, if unchecked, is the penetration of mould into the paper backing of plasterboard that would require, not the surface cleaning of mould, but replacement of the ceiling lining. In oral evidence, the experts engaged in the degree to which regular cleaning would manage the growth of mould.
While the experts were invited to discuss the comparative effectiveness of cleaning methods ranging from white vinegar, to bi-carbonate of soda, microfibre, sugar soap and clove oil, not much turned on this.
Dr Simpson identifies the inclinator and concrete wall to the western boundary as a primary contributor to mould growth.
While understandable that Mr Dashper would operate under the brief given to him by the Applicant, I prefer and accept Dr Simpson's assessment that the significant contributor to mould in the Study and Bathroom is due to the location of the inclinator, its well, and the large concrete wall to the west that obstructs sunlight and ventilation to this area of the dwelling under construction at No 66.
It would appear Mr Dashper was not given information as to when the large concrete wall was completed, which is after Trees T11-T22 were planted, and closer to the date when mould was discovered in the Study and bathroom. Furthermore, Mr Dashper's assertion as to the lesser contribution of the inclinator and large concrete wall to the west is unsupported by readings of relative humidity or airflow in the area immediately outside the study and bathroom.

Danger of rock failure

The Application seeks orders for Trees T11-T13 to be removed, and for the Kaldors to be prevented from planting trees in their place so as to prevent injury to persons and property.
The Application is supported by a single expert report prepared by Mr John Braybrooke of Douglas Partners dated 11 July 2023 (Exhibit B, Tab G) that identifies the location of T11-T13 on an overhanging sandstone outcrop (rock outcrop) that the Applicant believes is at risk of failure.
In the course of their oral evidence, the experts were taken to photographs of a rock slide on No 66 dated 26 August 2011 (Exhibit J). Photos A and B were explained by Mr Braybrooke, who attended that incident, as a failure from a joint that resulted in a large boulder slipping at the location of what is known as a cross-bed.
Photos of the rock outcrop in the vicinity of T11-T13 are contained in Mr Braybrooke's report, and the Court observed the area standing in both No 64 and No 66 during the onsite view.
Mr Braybrooke estimates the rock outcrop to be in the order of 1.5m thick, extend laterally for at least 2-3 metres, and overhang sandstone below it by around 3.5m. The rock outcrop is supported on two short columns.
In summary, Mr Braybrooke concludes that Trees T11-T13 could cause instability in the sandstone overhang in one two ways: 1. Firstly, by 'root-jacking' of a joint in the sandstone adjacent to the boundary, or 2. Secondly, by possibly undermining the stacked sandstone boundary wall that sits above it, or by levering loose rock off the overhang during heavy winds.
Should either scenario occur, it is Mr Braybrooke's opinion that injury to a person, or damage to the Applicant's property would be the result.
On top of the rock outcrop, a planter box contains Trees T11-T13. On 14 February 2024, Mr Braybrooke attended No 64 to inspect the planter box after which he prepared a memorandum dated 15 February 2024 (the Memo) (Ex K). The memo records his assessment of the planter box, summarised as follows: 1. External dimensions of 1.5m x 1.7m. 2. Perimeter of the planter box is constructed of timber sleepers with sides that range between 300-550mm in height. 3. Soil depth is between 610mm and 1180mm.
The Kaldors engaged Mr Paul Stubbs to prepare a single expert report filed with the Court on 25 January 2024 (Exhibit 3).
Mr Stubbs disputes the basis of Mr Braybrooke's opinion at [126] for reasons summarised as follows: 1. Aerial photographs support a view that Trees T11-13 were planted around 2009, and not 2020 as Mr Braybrooke states. 2. The roots of Trees T11-T13 are not in direct contact with the sandstone overhang. Rather, they are contained in a planter box. 3. Evidence of past rock failure on No 66 in the vicinity of Trees T11-13 supports a conclusion that the sandstone overhang is stable, and that a reinforced concrete wall constructed on No 66 now provides support to this area of land on No 64, as would be expected. 4. The stacked sandstone boundary wall cited at [126(2)] is no longer evident. Instead, the large concrete wall depicted at [109] extends along the boundary in the vicinity of Trees T11-T13. 5. In the event that loose blocks of sandstone or portions of the rock outcrop were levered off by the action of 'root-jacking', which Mr Stubbs considers unlikely, those blocks would fall within No 64 when the fall of the topography is understood. 6. The size and maturity of Trees T11-T13 suggests the risk of injury to persons or damage to property is overstated by Mr Braybrooke. 7. The roots that are visible in the vicinity of the rock outcrop, and said by Mr Braybrooke to belong to Trees T11-T13 are instead, according to the arborist for the Kaldors, characteristic of a creeping fig.
The experts assisted the Court by conferring further and providing handwritten summary of aspects on which they are agreed (Exhibit L), including agreement with Mr Stubbs' assessment of the risk to property as low given the trees have a minor impact on the overall stability either currently, or in the medium term.
The area of disagreement lies in the precise classification of risk of the damage. Mr Stubbs adopts a stability assessment methodology from Australia Geomechanics Journal Volume 42, No 1 March 2007 (Geomechanics 2007), to assess the risk of instability resulting from Trees T11-13 to be "rare or barely credible" over the period of the next year. Furthermore, Mr Stubbs does not consider the risk likely to increase in the medium to long term because Trees T11-13 are not expected to develop further.
Mr Braybrooke summarises the difference in opinion between the experts as to the likelihood of failure of the rock outcrop to range between 1:1,000, as assessed by him, to 1:10,000 as assessed by Mr Stubbs. This difference results in Mr Stubbs assessing the likelihood of failure as 'Unlikely', and Mr Braybrooke is 'Possible', and Mr Stubbs assesses risk as 'Low', while Mr Braybrooke assess it to be 'Medium'.
As a consequence of this difference, the difference in mitigation action that should be taken is either, according to Mr Stubbs, at the owner's discretion or, according to Mr Braybrooke, is recommended.
Mitigation action could include removing the trees or adding additional underpinning.
Mr Stubbs concludes, at Section 5.2 of his report, that the volume of soil present on top of the rock outcrop is very limited and the roots are constrained by the location of the swimming pool on No 64 to the south where the rock outcrop attaches to the main body of sandstone on that site. This is a view shared by the arboricultural expert for the Kaldors, Mr Gatenby.
Mr Gatenby's statement of evidence, filed with the Court on 25 January 2024, states the following: 1. Trees T11-T13 are considered to be in 'fair' health due, firstly, to limited soil volume that will limit future growth, and secondly, because of root competition, including from the creeping fig. 2. The trees provide privacy from overlooking from the northern terraces of No 66 back into living areas, swimming pool and outdoor living areas at No 64, and can be pruned if needed. 3. The roots of Trees T11-T13 are constrained by the swimming pool on No 64 and do not have a root system capable of growing over the rock outcrop. As such, the roots are not of a size that would dislodge large pieces of rock. 4. The size and likely growth of Trees T11-T13 are of no consequence when it is clear the rock outcrop withstood extensive vibration from rock sawing and earthworks from recent works to construct No 66. 5. Trees T11-T13 are a food source for native mammals and birds, are a hardy native tree suited to this location and support local biodiversity.
On 12 February 2024, the Applicant was granted leave to rely upon a single expert report prepared by Mr Guy Parossien (Exhibit F)
Mr Parossien considers T11-T13 to be of good health and vigor, with good foliage size, colour and density, indicative of mostly semi-mature or 'young mature' specimens that have not reached their maximum canopy dimensions. Abundant new growth evident on the trees suggests to Mr Parossien that an increase of 1m in height each year is likely.

Whether trees severely obstruct sunlight or a view from the dwelling (s 14E(2)(a));

In respect of what the Applicant asserts is a severe obstruction of sunlight to a window of a dwelling situated on the land, and views from vantage points on the land, the Application seeks orders in the following terms: The 1st and 2nd Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of these orders: Prune Trees T7 to T9, to a height of no greater than 1.8 metres from the ground level and remove any portion of the trees overhanging 66 The Point Road, Woolwich. Prune the bamboo hedge numbered T10 to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging 66 The Point Road, Woolwich. Remove Trees T11 to T13 Remove those parts of Bamboo hedge T14 growing on their property. The Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of these orders: Remove those parts of Bamboo hedge T14 growing on the 3rd Respondent's property Remove Trees T15 to T17. Remove Trees T18 to T22. Until such time as the trees T7 to T9 and T10 are permanently removed, biannually from the anniversary of the date of these orders, the 1st and 2nd Respondents are to engage and pay for a suitably qualified and experienced arborist, horticulturalist or landscaping contractor (all of which must be minimum AQF level 3) with appropriate insurances to carry out the following works within 60 days of the date of that anniversary: Prune Trees T7 to T9, to a height of no greater than 1.8 metres from the ground level and remove any portion of the trees overhanging 66 The Point Road, Woolwich. Prune the bamboo hedge numbered T10 to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging 66 The Point Road, Woolwich. The Respondents are to give the Applicant 7 days' written notice of their intention to commence of the works ordered in paragraphs 1 and 2 above. All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. The Applicant is to allow any reasonably access required to complete and clean up the works ordered above during reasonable hours of the day, provided that such access will not lead to damage to any property at 66 The Point Road, Woolwich.
Before making orders, Part 2A of the Trees Act requires the Court to consider several jurisdictional pre-conditions. These include: 1. The trees (there must be at least two) must be planted on adjoining land so as to form a hedge that rises to a height of at least 2.5m (s 14A(1)); 2. The applicant must make reasonable effort to reach agreement with the tree owners (s 14E(1)); 3. The trees must be severely obstructing either sunlight to a window of the applicant's dwelling, or a view from the dwelling (s 14E(2)(a)); and 4. The obstruction is such that the Applicant's interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). To determine this, those matters set out at s 14F must be considered by the Court.
If these tests are satisfied the Court can make orders pursuant to s 14D to remedy, restrain or prevent a severe obstruction of sunlight to, or a view from, the Applicant's dwelling.
As it was put in Haindl v Daisch [2011] NSWLEC 1145 ("Haindl v Daisch"), at [31]-[33]: 31 There are a number of jurisdictional facts that must be established before there is any requirement to turn to the matters for consideration in s 14E(2)(b) or s 14F - let alone the making of any orders and the nature of such orders that might be made pursuant to s 14D. The range of jurisdictional facts requiring to be established arises from s 14A(1) and s 14E(2)(a)(ii). They are, in order, as follows: Are the plants that are the subject of the application trees within the meaning of the Trees Act [and any definitional extensions contained in the Trees (Disputes Between Neighbours) Regulation 2007]? If the plants are trees, are there two or more trees? Were the trees planted (as opposed to being self-sown or remnants of original native vegetation)? If the trees were planted, were they planted so as to form a hedge? Is there a view from the applicants' property from the point concerning which the application is made and, by necessary inference, what comprises the view from that point? If there is a view, is that view of obstructed by the hedge? and If there is a view and the hedge obstructs it, is the obstruction of that view severe? 32 Only if every one of the foregoing questions is answered in the affirmative is there then a requirement to consider the balancing of the assessment factors that are contained in ss 14E(2)(b) and 14F. The first of these is the requirement to balance the interests of the applicant in ameliorating or removing the impact on the view with, amongst other matters, the interests of the owner of the trees in retaining them. The requirement to do so is contained in s 14E(2)(b), a provision that reads: the severity and nature of the obstruction is such that the applicants' 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. 33 As well as this balance being assessed, the Trees Act then sets out, in s 14F, a range of factors requiring consideration before turning to exercising the discretion given by the Trees Act, relevant to this application, through s 14D(1)(b) to determine whether or not orders should be made to remedy restrain or prevent a severe obstruction of a view and if so, what form such order to effect the remedy restraint or prevention is required.
In support of the claim that views and sunlight are obstructed by those sources at [6], the Applicant tabulates both the loss of sunlight and views from the windows said to be affected, and provides three-dimensional computer-generated views that are said to depict the sunlight and view enjoyed from certain locations in 2008 and 2023.
The tabulation of sunlight (Exhibit B, Tab 3C) and sunlight and views (Exhibit B, tab 3B) are not in a form commonly seen by the Court. A combined analysis of sunlight and views was prepared by the Applicant who explains in oral evidence that a theodolite was used to determine the location of features on the property at No 64, and to plot both the azimuth and altitude that are then translated into a series of graphs that "approximate" in block form the duration and magnitude of obstruction.

Views

To the extent views are dealt with in the tabulation at Tab 3C, the diagrammatic form of analysis does not assist the Court in understanding the nature or character of the view said to be lost, whether it is total or partial, or what the view that is said to be lost, is a view of, or to. It does not appear to take into account the impact of the steep topography, landscape features or terracing on either site that might have once, or now does, influence the view that is the object of the analysis.
For instance, the diagram on Drawing H12 (Tab 3B), marked "azimuth angles for views and sunlight with obstructions", purports to show that sometime in 2008, window W6 enjoyed a 144 degree angle view from a point in the vicinity of the TfNSW land to the north of the site, to a point somewhere to the south west in the approximate location of the Kaldor's outdoor entertaining area.
The same plan shows the Finished Floor Level (FFL) at W6 is RL5.80. The RL of the jetty is RL1.21 (Exhibit B, Tab F), and the RL of the land in the vicinity of the Kaldors outdoor entertaining area is RL 10.61. This represents a change in level of 9.39m that, on the basis of the onsite view is not easily squared with the assertion of such a wide angle view, nor with the diagrammatic form of analysis that appears to fail to account for topography and other natural features such the rise in the Kaldors land in the vicinity of the large Magnolia tree, the base of which is at RL 6.09, or the Jacaranda, the base of which is at around RL 11.19, (if levels to the east are extrapolated). Such features would have obstructed a large proportion of the view from W6, said by the Applicant to be an arc of 144 degrees.
Likewise, the similar diagram on Drawing H14 explicitly states that Window W8, from the west facing bathroom, enjoyed a view angle over the Kaldor's land of 144 degrees that took in an arc that ranged from the jetty to the north, to the pool deck on the Kaldor's land. Given the FFL of this level is RL 2.05, and the level of the Kaldors pool deck is RL 9.55, the diagrammatic form of analysis again appears to fail to take into account the steep rise in topography and other built features that would have obstructed any view in the vicinity of W8.
Mr Waghorn regards the diagrams as difficult to comprehend and instead adopts the framework for assessment set out in the planning principles in Tenacity Consulting v Waringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity") to understand the nature of the view, degree of loss, and the source of that loss. Mr Waghorn's written evidence is summarised as follows: 1. In assessing the views to be affected: 1. The views from No 66 that are affected by trees on the boundary vary as one moves around the house. There are no iconic views affected by the trees. Instead, the views are to the Lane Cove River and Woodford Bay, and to distant land/water interface views enjoyed over a side boundary that are partial, not whole, views. 2. In the event trees T7-22 are removed or pruned as sought in the proposed orders, other landscape features on No 64 such as natural rock landforms and other mature trees would, in many cases, obstruct that same view. 3. However, views enjoyed to the Lane Cover River and Gore Creek, the towers of St Leonards and North Sydney to the east and north are whole views that would remain uninterrupted. 4. Photographs of the dwellings evident on No 66 in 2010 show limited openings to the boundary, suggesting it, as well as the dwelling now under construction on No 66 orientates to the north where the view, and solar access, is whole and uninterrupted. 1. In respect of assessing from where the views are obtained, Mr Waghorn believes: 1. the decision to locate the dwelling on No 66 now under construction further past the northern building line of adjoining buildings, affords No 66 greater access to views, especially from side windows that overlook the side boundary to No 64, or from rooms identified as bathrooms and laundry that are not used for an extended period of time. 2. Views to water from Windows W8 and W9 were not available in 2008 when the dwelling now under construction was designed due of obstruction by natural rock features, the mature Magnolia and Fig tree on No 64. Furthermore, the consent for W9 appears to date from the issue of Building Certificate 2021-005, when T14 was in situ. 3. W9 is viewed from a finished floor level of RL2.05, beyond which the natural rock outcrop rises to a level that ranges from RL6.35 to RL8.54 and so obstructs views to water beyond. 4. Views from the Study, through openings added in 2021, are primarily obstructed by the inclinator and concrete wall to the western boundary, 5. Views from Windows W6 and W7 are obstructed by Trees T14-T22, behind which stands a large fig tree that would also contribute to view loss across a side boundary. 6. Views from Windows W4 and W5 are across a side boundary, and from a family room which also enjoys large northern windows opening to a north-facing terrace. The finished floor level from which a west-facing view is enjoyed is RL 10.2. The top of the large concrete wall to the western boundary of No 66 is RL11.39. The finished floor level of the pool deck on No 64 is RL9.55. 7. The views from W1 and W2 are not said by the Applicant to be lost, however Mr Waghorn notes any obstruction is by Trees T7-T9 that existed prior to consent granted to the dwelling now under construction on No 66. 1. In assessing the extent of impact, Mr Waghorn considers: 1. When all views enjoyed throughout the dwelling are considered, those views obstructed to the west are over a side boundary, are secondary, and are within rooms with primary openings to the north. 2. The affected views are a small proportion of the views enjoyed overall, on which the dwelling now under construction has been designed to capitalise, and which are not different to those views that are obstructed. In fact, the unobstructed views to the north and east are superior to the views obstructed. 3. The views lost to the Lower Ground and Basement levels must be considered a lesser impact than upper levels as no views were available from these levels in 2008 when the dwelling now under construction was designed. 4. The views that are genuinely affected are not those from a primary living space, or spaces but from bedrooms, a bathroom, study and games lounge. 5. A number of the trees on No 64 said to affect the views from No 66 are specifically nominated on DA2008/1138 (annexure B), beyond which other natural landscape features contribute to the obstruction. 6. When the view is considered as a whole, Mr Waghorn concludes the obstruction of the view by T1-22 is minor, and does not reach the threshold of 'severe'.
Mr Waghorn concludes that, even in the event his assessment is found deficient: 1. The trees provide a privacy benefit to both Nos 64 and 66 2. There is a significant public benefit to maintaining the trees on the common boundary to promote the landscape character of Woolwich, reduce the heat island effect and enhance the natural appearance of Sydney Harbour and its tributaries. 3. The trees on the boundary assist in mitigating bulk and scale of the approved dwelling now under construction at No 66 when viewed from No 64 and from the Lane Cove River.
Mr Martin does not structure his evidence along the Tenacity principles, but instead considers the views from nominated locations, supported by images taken from those locations; first to assess privacy, and then to assess the loss of view or views.
When describing the impact of the vegetation on the privacy on the Kaldors land, Mr Martin adopts a ranking scale of 'very low, low, moderate, high and severe privacy loss'.
Mr Martin describes his approach to the task at p1 of his expert report (Exhibit E) included, relevantly: • Inspected the site known as 66 The Point Road Woolwich • Inspected the neighbouring site owned by Andrew and Renata Kaldor known as 64 The Point Road Woolwich; • Assessed the requirement for privacy between 64 and 66 The Point Road Woolwich without vegetation in place on the boundary that is subject to the dispute between the two parties; • Determined whether the amenity imparted by the vegetation in question to no. 64 The Point Road when balanced against the loss of natural sun light (along with the additional impacts from this) and views to 66 The Point Road Woolwich lead me to form the conclusion as a town planner that the orders requested in these proceedings are justified. I note here that the vegetation is on the boundary and affects west facing windows located at various levels of 66 The Point Road and the vegetation at the lower waterfront area has been achieved/facilitated by illegal works and no normal environmental assessment under the EPA Act;
In his assessment, Mr Martin describes the comparative levels of the dwellings at Nos 64 and 66, explaining that the elevation of No 64, being setback in the topography, means that the ground floor level of No 64 is 2.5m higher than the ground floor family room of No 66 The Point Road.
In essence, I understand Mr Martin's evidence to be that indoor and outdoor living areas are so distant or otherwise protected from overlooking from No 66 that privacy is not adversely affected by the trimming or removal of trees on the boundary.
Where views from the upper levels of No 66 may afford a sightline to areas such as the Kaldors' ensuite and gym, Mr Martin is of the opinion that it is unreasonable to expected landscape planting to deliver privacy at such elevated heights. This is especially the case where windows to those areas are fitted with internal privacy screens.
Mr Martin assesses the privacy loss from Windows W1-W5 on No 66 to be low, which supports a conclusion that Trees T6-T9 can be trimmed to 1.8m above ground level and T10-T13 can be trimmed to the top of an existing upturn in the concrete wall to the boundary.
W1 and W2 are ensuite windows. Without T7-T9 in place, Mr Martin asserts W1-W3 would provide a view to the pool, pool deck, grassed areas and pathways. W3 is a north facing window to the master bedroom. Mr Martin regards it as reasonable to assume a window to such a space is unlikely to result in overlooking, but yet is deprived sunlight because of the height of vegetation on No 64 in this location.
W4 and W5 are west facing windows to the family room. From W4, the vegetation of T7-T9 is visible, and the vegetation of T10 is visible through W5. The view from both windows is moderated by the concrete wall to the western boundary that, at this level, rises 1.5m above the external terrace.
From a viewpoint taken in what is said to be the centre of the room, Mr Martin's opinion is that T7-T9 and T10 can be trimmed to 300mm above the concrete wall south of the southernmost window jam to W4 beyond which T7-T9 can be trimmed to 1.8m above ground.
Mr Martin also assesses the privacy loss likely from the external terrace to the east of the family room, and relies on landscape planting approved in a prior consent cited at Annexure C of Mr martin's expert report, re-produced below, to assert the approved DA has 1m high plantings to the western edge of the terrace.
At the lower level, Windows W6 and W7 are assessed by Mr Martin to be severely and unnecessarily blocked in terms of solar access and views by T14-T22 that, in his view, serves no justified privacy purpose. In the case of W6, Mr Martin notes that a "cross view historically existed" in this location by virtue of the glazed opening and likewise W7 by virtue of the opening in brickwork, depicted at Plate 18 of his expert report (and otherwise found at Exhibit B, Tab D, photo 07), re-produced below:
As Mr Martin puts it, the adverse impact of reduced natural sunlight outweighs the privacy benefits of the vegetation.
Views enjoyed from the dwelling under construction at No 66 are referred to at p 25 of Mr Martin's expert report, with particular concern held for views to water through W7 in the games room, and through W5 that Mr Martin also accepts is likely to be impacted by the bamboo planter approved to No 66 at Annexure C, Section F, shown to achieve a height of 1800mm.
Mr Martin also includes an image of the panoramic view enjoyed from this room at Plate 21, re-produced below.
While Mr Martin may have approached the task by first assuming the vegetation was not in place, in favour of a 'first principles' approach, this is not the task required of the Court.
Instead, I must consider the vegetation that was, and is, in place and about which orders are sought. I must approach the task in the manner set out at s 14A, s 14E and s 14F of the Trees Act, within the rubric helpful espoused in Haindl v Daisch at [143].
The difference is that Mr Martin seeks to argue the acceptability of privacy impacts that result from the orders proposed by his client, the Applicant, rather than primarily addressing the sunlight or views said to be obstructed by the vegetation that, in a number of cases, existed prior to the Applicant purchasing the property at No 66 or conceiving of alterations and additions now under construction. Mr Martin does not sufficient address this reality.
Privacy is a matter the Court is required to consider under s 14F of the Trees Act, but only if the Court finds that sunlight and views are severely obstructed.
I also note Mr Martin does not address the chronology of consents that explain the progressive changes in circumstance along the western boundary, but rather operates solely on the assumption of what is presently so.
I prefer and accept the evidence of Mr Waghorn because: 1. It primarily addresses the views that are purported to be obstructed from No 66 with appropriate consideration of the view said to be affected; the location from which the view is obtained, and the extent of the view, which does not exclude the uninterrupted view to the north. 2. topographical and other physical features, beyond vegetation at the boundary, that influence the view, are more thoroughly considered, whether or not the orders sought are given effect. 3. the significance of views said to be affected are assessed and ranked based on both the subject of the view, and the location from where the view is taken, concluding that views enjoyed from lower levels are more likely to have been affected since 2008. 4. Consideration is also given to the chronology of consents, including modification applications and building information certificates to regularise unauthorised works, which is a matter of consideration at s 14F(e) of the Trees Act.
I am satisfied that the view from the following windows is severely obstructed: 1. W5, that would otherwise enjoy a northern west view to Lane Cove River but for the obstruction cause by the height of T10, and the height and overhang of T11-T13. 2. W7, that would otherwise enjoy a north western view to the Lane Cove River but for the obstruction caused by the height of T18-T22. 3. W9, that would likewise enjoy a north western view to the Lane Cove River but for the density of T18-T22.
I note here that other windows in question are, in my assessment, either located at such a low RL to have not enjoyed a view, for reasons set out at [147]-[149], or are located so forward on the western elevation as to retain sufficient access to sunlight and views as to fall short of the threshold of 'severe'.

Sunlight

The Applicant relies on sun eye diagrams (Exhibit B, Tab 3C and Exhibit D) that purport to show obstruction to sunlight in 2008 and 2023. For reasons similar to those stated at [78], the Kaldors submit that the depiction of shadows cast from No 64 in 2008 is irrelevant for two reasons: 1. Firstly, the dwelling under construction shown in the modelling was not there in 2008. 2. Secondly, the modelling shows only one tree on No 64, which is incorrect.
While the original author of the sun eye diagrams was unavailable, a colleague from the same office, Mr Graham Gibson, gave oral evidence as to the preparation of the report at Ex D. In short, the modelling of the site and dwelling under construction at No 66 is based on survey information provided by the Applicant, transposed into a Computer Aided Design (CAD) program known as Revit. The height of trees is likewise based on survey information, however Mr Gibson acknowledges the spread and density of tree canopies depicted was determined 'by eye', and not, for instance, point cloud survey, and so the depiction of the two sites in 2008 is 'hypothetical'.
Given the acknowledged shortfalls in the accuracy of information used to prepare the modelling in Exhibit D, the Court is not assisted by it. The spread and density of tree canopy and screening is not derived from survey, and photos provided by the Applicant at Exhibit B, Tab D, said to date from 2008, show trees and other landscape features missing in the modelling from that time. Furthermore, obstructions such as the Port Jackson Fig appear far smaller in the sun eye diagrams at Tab 3C when compared with photos such as Photo 14 (Exhibit B, Tab E) or behind Mr Maurici's statement (Exhibit C, dated 27 February 2023). As such, the contribution by this obstruction to W6, W7, W8 and W9 may be underestimated.
It would also appear that landscape screening proposed by the Applicant, depicted in Annexure F of Mr Waghorn's report, and included at Annexure C of Mr Martin's report, is also missing from the model.
As such, the diagrams at Exhibit D appear to lack that which was there in 2008, and does not claim to accurately model that which is there now.
While the Court is not assisted by the analysis at [144]-[145], prepared by the Applicant, or by the sun eye diagrams at Exhibit D, the Court relies on its own observation of vegetation viewed from certain vantage points on the site at No 66 during the onsite view, and photographs contained in the expert evidence to accept that the vegetation along the boundary does severely obstruct sunlight to certain windows.
I am satisfied that sunlight is severely obstructed to the following windows: 1. W4, by the overshadowing caused by the height and overhang of T7-T9. 2. W5, by the overshadowing caused by the height of T10. 3. W6, by the overshadowing caused by the height and overhang of T14, and T15-T17; and 4. W8, by the overshadowing caused by the height and overhang of T14, and T15-T17.

The applicant must make reasonable effort to reach an agreement with the tree owners

Sections 10(1)(a) and 14E(1)(a) are in identical terms, requiring that Court to be satisfied that the Applicant has made a reasonable effort to reach agreement with, in this case, the Kaldors.
The Applicant provides evidence of what are said to be reasonable attempts to reach agreement with the Kaldors in Exhibit B, in the form of the following: 1. An email from the Applicant to the Kaldors on 23 December 2021 (Tab M). In summary, the email requests the Kaldors prune hedges along the boundary in the vicinity of the tennis court, the inclinator and 'north of the sandstone escarpment' to a height of 2.5m above the Kaldors land. 2. The Applicant applied to the Community Justice Centre for mediation in January 2022 that the parties agree took place in April 2022. 3. An email from the Applicant to the Kaldors on 23 December 2022 (Tab N), enclosed a copy of a Tree Dispute Application detailing the orders to be sought, and plans showing locations of trees concerned. The email advised that the Tree Dispute Application would be lodged with the Court in the new year, unless the Kaldors wished to avoid legal proceedings and undertake the works requested prior.
Mr Kaldor's oral evidence is that, despite his own interest in resolving the dispute with the Applicant, he did not reply to the email of December 2021 because the Applicant advised that he would seek mediation in the event the Kaldors did not reply or take action.
As I understand Mr Kaldor's evidence, he regarded mediation as an appropriate and welcome path to resolving the dispute. Furthermore, Mr Kaldor's oral evidence is that he is not against pruning of trees on the boundary, however his preference is for the extent and shape of pruning to be agreed between the Kaldors and the Applicant prior to the pruning being undertaken.
In the case of the email dated 23 December 2022, Mr Kaldor's evidence is that he did not at first understand the relevance of a Tree Dispute Application until legal advice was sought.
While attempts by the Applicant to reach agreement with the Kaldors may be described as perfunctory, and perhaps - by virtue of the later correspondence being dated exactly one year after the initial correspondence - somewhat formulaic, the request made by the Applicant was made clearly, and in writing, and was supported by photos such that the request can be clearly understood, and following which the Applicant took action to engage in mediation.

Findings in respect of Trees

When the trees the subject of the Application before Court are understood as discrete trees or groups of trees, there are nine such trees or groups of trees.
There are six groups of trees in respect of which the Applicant seeks orders owing to the obstruction of sunlight and/or views.
There are six groups of trees in respect of which the Applicant seeks orders owing to damage or injury.
I will address the issues, and any orders, under the nine groups of trees.
In doing so, and on the basis of the evidence before me, and written submissions in closing from the parties, I am satisfied that the that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, pursuant to ss 10(1)(a)and 14E(1)(a).
My findings in respect of the trees are as follows:

Tree 1: Liquid Amber

In his written evidence, Mr Martin observes that erecting the 4m fence surrounding the tennis court at No 66 requires the pruning or removal of Trees T1 and T2-T6. At the same time, the likely future maintenance issues of leaf and limb fall should be addressed.
To the extent that the branches of T1 overhang and incur into No 66, the Applicant does not claim that it severely obstructs sunlight or views, but instead that it may cause damage to the proposed tennis court fence yet to be erected, and contributes to leaf litter that requires undue maintenance.
Whether nor not the proposed tennis court fence is capable of being erected in the location for which consent may have been granted is not, in my view, a task for the Trees Act but for the terms of the development consent relevant to the application of which the tennis court fence is a part.
Whether the leaf litter caused by T1 is beyond that to be reasonably expected in a suburb identified in the objectives for development in the R2 zone as having a garden suburb character is difficult to say. However, T1 was an extant reality when the Applicant located the tennis court, and its drainage, in its current position. I regard the regular removal of leaf litter from the stainless steel guard within the drainage sumps to be evidence of a system working as intended, and not of damage - either now or in the future.
This is not inconsistent with the principle in Barker v Kyriakides [2007] NSWLEC 292 that, in short, provides that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree (at [20]).
As I cannot find T1 has caused, is causing, or is likely in the near future to cause damage to the Applicant's property, or to a person, I decline to make the orders sought in respect of T1.

Trees 2-5: Lily Pilly Hedge

The Applicant seeks the removal of T2-T5 owing to the damaged caused in leaf fall, and because it is likely to cause damage to a proposed tennis court fence.
I note Mr Gatenby's assessment is that within this group, T2 and T3 are Lilly Pilly's and that T4 and T5 comprise seven "small suppressed Lilly Pilly" and bamboo within the same garden bed. (Exhibit 4, p 6)
For reasons similar to those at [196], I regard the terms of the development consent relevant to the development application of which the tennis court fence is a part, and not a matter for the Court to re-litigate in these proceedings.
Likewise, to the extent that T2-T5 are the source of leaf litter and other detritus, in terms similar to those at [197], I consider the characteristics of these trees to be a 'known known' at the time a decision was taken by the Applicant to locate the tennis court, and its drainage in this location, and about which presumably expert advice was sought.
T2-5 have been growing along the boundary since at least 1987, prior to the current fence. It appears T2 and T3 have existed since 1986 when the Kaldors purchased the property at No 64.
It is commonly held that T2-T5 contribute to the deviation and distortion of the paling fence in this location. I am satisfied that damage has been caused, and is being caused to the fence by the growth of T2 and T3, pursuant to s 10(2)(a) of the Trees Act. Furthermore, I am satisfied that continued growth of T2-T5 is likely to further damage the fence if action is not taken.
Lilly Pilly's are well suited to pruning and regular maintenance. As such, I have considered whether pruning in height and width may be an alternative to removal of the trees that otherwise provide some degree of privacy between properties (ss 12 (b2) and (b3)).
I find that a regime of pruning and maintenance, combined with the removal and reinstatement of a paling fence identical in height and manufacture to that in place today is an appropriate course of action. The Applicant's landscape planting to this boundary remains immature and may, in time, form its own screening to this boundary, which is considered a benefit, should that eventuate.
However, I also note Mr Gatenby's assessment of the landscape planting to the Applicant's land in this location at pars 4.4.5-4.4.6 of his report (Exhibit 4) that the landscape planting may vary from that depicted in the Landscape Plans prepared by John Chetham & Associates (Exhibit 5, Annexure E), does not appear to be irrigated, and is in "exceedingly narrow garden beds".
Adopting the regime at [207] is also likely to remedy, in part, the concerns held by the Applicant as to likely damage to eaves from overhanging branches, and in the degree of overshadowing of landscape planting alongside the tennis court that has presumably been selected for growing conditions that include the close proximity of T2-T5.
In saying this, I also note Mr Gatenby's evidence at par 4.4.3 of his report that cutting the trunks of T2 and T3 at the boundary would remove 95% of those trees and is not recommend on arboricultural, screening or aesthetic grounds.
In his oral evidence, Mr Kaldor states that the height of T2-T5 has not been trimmed since the failure of mediation between the parties sometime in April 2022, and also agrees that the extent to which trees overhang into the Applicant's land is not a reasonable state of affairs.
The Kaldors submit that the cost of replacing the 12m length of fencing should be allocated equally between Applicant and the Kaldors as is the usual course for boundary fences.
The prior existence of the trees is a relevant consideration when deciding who should meet the cost of carrying out any order made by the Court.
As I find T2-T5 has caused damage, and is likely to cause damage in the near future if action is not taken, I intend to make orders in respect of these trees, subject to considering those matters to be considered at s 12 of the Trees Act.

Tree 6: Bamboo clump

The Applicant seeks orders for the Bamboo hedge at T6 to be pruned to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging No 66 so that damage to the stormwater drainage and inclinator is minimised or avoided.
I find it probable that T6 existed from sometime in 1985. Mr Gatenby regards the future growth limited by competition, constrained soil volume and the rain shadow effect of the house at No 64.
I do not accept that the leaf litter caused by T6 is unreasonable, or beyond a volume capable of being managed by regular maintenance.
The risk identified by a contractor at [93] remains theoretical, as the inclinator is not installed or commissioned. Finally, it might be of some ongoing concern if the inclinator pit is not drained other than by a submersible pump, as is suggested by the reference to a 'sump pump' in the letter at [93].
However, I accept that bamboo, if left unattended, can reach heights that result in a whipping effect in high winds that can cause damage to property with which it comes into contact. On the basis that T6 is likely to cause damage in such a way if left unattended, I intend to make orders in respect of T6, after considering those matters to be considered at s 12 of the Trees Act.

Trees 7-9: Lilly Pilly Hedge

The Applicant seeks orders to prune T7-T9 to a height of no greater than 1.8 metres from the ground level and remove any portion of the trees overhanging No 66.
While the planning experts may agree a height appropriate for pruning that would preserve privacy, this must be balanced with the evidence of the arborists.
Mr Gatenby's written evidence is that these trees have been regularly maintained in the past, display dense foliage and some pruning will not significantly affect privacy between the properties. Pruning close to the boundary will remove around 30% of the total canopy without affecting the health of the trees.
In oral evidence, the arborists agree that pruning such as that sought by the Applicant would fundamentally compromise T7-T9 so that "a stump" would remain, according to Mr Gatenby, or that a stump and one lateral branch would remain, according to Mr Paroissien.
Such would be the impact that Mr Paroissien would not recommend removal of such a proportion of the canopy, but removal of the trees and replacement instead.
I accept Mr Gatenby's opinion as to the extent of pruning capable of being achieved without the impact of pruning being adverse to the health of the trees, and the common view of the experts that the orders sought would be adverse to the health of the trees.
As I find the sunlight to W4 is severely obstructed by T7-T9, I intend to make orders in respect of these trees, subject to considering those matters to be considered at s 14F of the Trees Act, and mindful that T7-T9 have existed since sometime between 1986 and 1996.

T10: Bamboo clump

The Applicant seeks orders to prune the bamboo hedge T10 to a height of no greater than 1.8 metres from the ground level and remove any portion of the bamboo hedge overhanging No 66.
T10 is a clump of bamboo planted in a narrow planter box pictured on p 31 of Mr Gatenby's expert report.
The planning experts agree that pruning T10 to around 300mm above the retaining wall on No 66 would be appropriate. That said, Mr Martin acknowledges in the oral evidence that such a height would afford a sightline from the terrace on the boundary on No 66, into the pool deck and private open space of the Kaldors.
As I have found T10 severely obstructs the sunlight to W5, I intend to make orders as to pruning after considering those matters to be considered at s 14F of the Trees Act.

Trees 11-13: Lilly Pilly clump

Consideration of T11-T13 appears at some length at [121]-[139] in respect of the likelihood of damage and injury resulting from these trees on the rock outcrop located on No 64.
In respect of damage and injury, I acknowledge and accept the agreement of the experts that the risk to property is low given the trees have a minor impact on the overall stability either currently, or in the medium term. As such, I find damage to the Applicant's property, or injury, is not likely.
The Applicant's claim that T11-T13 contribute to mould growth in certain rooms is dealt with at length at [102]-[120]. For reasons set out prior, and when the location of these trees is properly understood in respect of those rooms with mould growth, I cannot find a link between T11-T13, and the growth of mould in those rooms.
In particular, windows provided to the study are set deep within a cave-like space that is virtually enclosed by the large concrete wall to the western boundary and the terrace over that forms a roof. Only two openings are provided; one of which is a small aperture in the roof over to permit travel of the inclinator, and the other is to the north.
Windows in the study are large, but only a small proportion of the window is operable. As the dwelling remains under construction, the spaces internally have not been ventilated, seemingly for a prolonged period of time.
Finally, the decision to locate the inclinator pit in a poorly ventilated enclosure, with only a submersible pump for drainage is, in my view, one worthy of patient reflection. The combination of poor ventilation, the obstruction of sunlight by the large concrete wall to the western boundary and roof over, and limited openings for sunlight to penetrate are greater contributors to the growth of damp and mould than the transpiration of leaves on the lower branch of T15-T22 as asserted by the Applicant (Exhibit C, par 78).
The Applicant asserts that T11-T13 also obstruct sunlight and views, and seeks the removal of T11-T13 on these grounds.
I note the survey plans (Exhibit B, Tab F) show T11-T13 reaching a height at RL 13.31, with survey levels on the rock outcrop being in the order of RL 5.6-RL 5.8 resulting in trees with a height of between 7.51m - 7.71m.
As I have found that views from W5 to the Lane Cove River are severely obstructed by T11-T13, and I accept Mr Paroissien's evidence as to the potential for growth of these trees at [139], I intend to make orders in respect of these trees.

Tree 14: Bamboo clump

As it is commonly held that the land on which T14 is planted is not Crown land, s 14A(2) does not operate to exclude application of the Trees Act to this tree.
The Applicant seeks orders to remove those parts of Bamboo hedge T14 growing on TfNSW land.
As I have found T14 severely obstructs sunlight to W6, I intend to make orders in respect of this tree.

Trees 15-17: Lilly Pilly Hedge

As is the case for T14, the Lilly Pilly's that form T15-T17 are likewise not excluded from the application of the Trees Act.
The parties agree these trees were planted in 2020.
As I have found T15-T17 obstructs sunlight to W6 and W8, I intend to make orders in respect of these trees, subject to the consideration required of me by s 14F of the Trees Act.

Trees 18-22: Lilly Pilly Hedge

As T18-T22 are also located on land to which the Tree Act applies, and because I have found that these trees obstruct views that would otherwise be enjoyed from W7 and W9, I intend to make orders in respect of these trees, subject to consideration of those matters at s 14F.
I note here that while T18-T22 obstruct views from these two windows, I also consider the role played by these trees in providing a degree of privacy where the private open space of both properties is at their closest point of proximity. Accordingly, I consider it reasonable to balance the loss of view to W9 with the extensive views enjoyed to the north from this room through large glazed openings. In considering the image at Plate B1 of Mr Martin's report (Exhibit E), it is my view that pruning to the overhang of T18-T22 will largely remedy the loss of view to W9, and pruning the height of T18-T22 will remedy the loss of view to W7 above.
For completeness, I consider the forward position of W7 and W9, being so close to the north western corner of the dwelling under construction, affords these windows sunlight along the solar path during morning and early afternoon such that I do not find the obstruction of sunlight by T18-22 on those windows to be severe.
Additionally, and for reasons set out at [177], I question the veracity of the sun eye diagrams and the degree of obstruction attributed to topography and other natural features identified by the Applicant as OS5, the Port Jackson Fig.

Matters to be considered in respect of trees that cause or are likely to cause damage or injury

Section 12 of the Trees Act requires the Court to consider certain matters before determining an application in respect of damage or injury. I have considered those matters in the following terms: 1. Trees T2 and T3, being mature Lilly Pilly's, either press against or are likely to press against the fence on the common boundary in the near future, given growth expected if left unchecked. I do not understand there to be anything other than T2 and T3 to have caused the damage, including the ivy climber that may have existed in the past. (subs 12(h)). That said, I note the potential for growth in T4 and T5 that are likely, if not attended to, to cause damage to the fence in the future. 2. Lilly Pilly's are known to take well to pruning, and so I consider the impact of any pruning, being a matter to be considered at s 12(b2) would not pose a risk to the health or longevity of T2, T3, or T4 for that matter. 3. Trees T2 and T3 provide privacy between the properties, and contribute to the garden design and landscaping appropriate to a side setback in an urban setting, being matters at s 12(b3). 4. The landscape planting to No 66 does not appear consistent with that approved in either Annexure E of Mr Waghorn's report, or the Construction Certificate plans at Annexure F. Whether or not this is the case, the planting in place on No 66 in this location is yet to achieve a height and density that provides adequate privacy between the properties. To the extent the Applicant identifies level changes and fencing between the properties to perform this function, I note large windows to the south and west of the dwelling under construction at No 66, and a first floor balcony seemingly at FFL 14.95, are also sources of potential overlooking for which landscape screening provides a benefit, (subs 12(b3)). 5. In general terms, having considered the contribution made by the trees in terms set out at subs 12(d) and (e), I adopt the view that Lilly Pilly's, as a native, fruit-bearing species, make a greater contribution to the local ecosystem and biodiversity (s 12(d)), and to the natural landscape and scenic value of the land (s 12(e)) than does the bamboo. 6. Relatedly, in considering the scenic value of the land, and the intrinsic value of the trees to public amenity (s 12(f)). I note the introduction to Part 2.3 of the Hunters Hill Consolidated Development Control Plan 2013 (HHDCP) (Exhibit 9) states: This Chapter applies to all trees and vegetation within the Hunters Hill Municipality which contribute significantly to the character and identity of this Municipality which is explained in this Plan by Chapter 2.2 Character… 1. Likewise, I note Nos 64 and 66 are identified on the River Front Area Map, at cl 6.7(2) of the HHLEP which, by reference to the objectives and the operative provisions at subcl (3), would appear to fall within river front areas that have particular scenic value, in which existing trees should be conserved, and where existing views towards waterways from public places should not be obstructed. At present, I accept the overhang of T2-T5 and T6 into No 66 may serve to obstruct views to the Lane Cove River than may otherwise be enjoyed from vantage points on The Point Road. 2. I have considered the steps taken by the Applicant to prevent damage and injury in terms required by subs 12(h) and (i) at [182]-[187].
Having considered those matters at s 12 of the Trees Act, I have formed the view that when the contribution of T2-T5 to privacy, landscape and garden design are taken in to account, and the role of trees and vegetation is understood in terms of the scenic value of the River Front Area, the damage caused by these trees, and the likely damage in the future, can be addressed by pruning and the replacement of the existing fence in the vicinity of T2-T5.

Matters to be considered in respect of trees that obstruct sunlight or views

Having found certain trees severely obstruct sunlight or views, or both, to certain windows on the dwelling under construction at No 66, I have considered those matters to be considered at s 14F of the Trees Act, being virtually identical to those at s 12, in the following terms: 1. Unquestionably, certain trees have existed on the Kaldors property prior to the design, development consent and construction of the dwelling now under construction at No 66. These trees include T1, T2-T5 and T7-T9 that all existed prior to the dwelling the subject of the application (s 14F(b)). 2. All 22 trees appear to have grown to a height greater than 2.5m (s 14F(c)), consistent with Mr Kaldor's oral evidence that pruning has not occurred since at least April 2022. 3. I have considered the extensive history of consents that apply to the Applicant's land, consistent with subs 14F(e). In particular, I note the details of landscape planting shown in Annexure C of the Mr Martin's report, and in Annexure F of Mr Waghorn's report inasmuch as the Applicant proposes planting to the western perimeter of the Ground floor terrace, serving the Family room, of 1800mm in height that would obstruct some portion of the view enjoyed from W5 to the north-west, beyond which lies the Lane Cove River. To the extent T10 and T11-T13 obstruct the view from W5, it appears the Applicant proposes to do likewise in the future. 4. As stated at [250(5)], I adopt the view that Lilly Pilly's, as a native species, make a greater contribution to the local ecosystem and biodiversity (s 14F(g)), and to the natural landscape and scenic value of the land (s 14F(h)) than does the bamboo. 5. Likewise, in terms identical to those at [250(6)]-[250(7)], in considering the scenic value of the land, and the intrinsic value of the trees to public amenity (s 14F(i)), Part 2.3 of the HHDCP states all trees and vegetation within the Hunters Hill Municipality contribute significantly to the character and identity of the area. 6. Likewise, Nos 64 and 66 are identified on the River Front Area Map, at subcl 6.7(2) of the HHLEP in which, the objectives and the operative provisions at subcl (3), cite the scenic value derived from existing trees that should be conserved.. 7. I have considered the impact of T11-T13 on the sandstone rock outcrop at [121]-[139] which is a matter to considered at s 14F(j). I conclude, at [232], that damage to the Applicant's property, or injury, is not likely. 8. Other than T7-T9, for reasons I set out at [220]-[224], I consider the vegetation along the boundary to be robust and well suited to pruning and other maintenance of a sort identified at s 14F(k). 9. I have considered the contribution of the trees, and tree groups, to those matters at subs 14F(l), which comprise privacy, landscaping, garden design, heritage values, sun, wind, noise, smells, smoke and the amenity of the land on which the trees are located. Where relevant, I have addressed these in respect of each tree group. 10. In accordance with subs 14F(m), I have also considered the contribution of obstructions to sunlight and views from features other than the trees the subject of the Tree Dispute Application, such as the those obstructions cited at [7], the topography of the land at Nos 64 and 66, the elevation of the pool deck to No 64, and the large concrete wall to the western boundary, and the concrete terrace over that forms an enclosure of sorts on No 66. 11. I have taken into consideration, at [182]-[187], those steps taken by the Applicant to rectify the obstruction, by inviting the Kaldors to take certain action, as I am required to by subs 14F(n). 12. The amount and nature of sunlight lost to No 66 as a result of the trees on No 64 is considered at [175]-[179], in accordance with subs 14F(o). 13. While not assisted by the experts on whether the trees in question lose their leaves during certain times of the year, being the focus of subs 14F(p), it is my understanding that only T1 is deciduous, which is not said to obstruct sunlight in any event. 14. The nature and extent of views said to be affected by the obstruction, being the subject of subs 14F(q), and the part or parts of the dwelling under construction at No 66 affected, which is the subject of subs 14F(r), are considered together at [146]-[172].
No 64 is set back on the block, with a large expanse of private open space fronting the Lane Cove River.
No 66 is set forward on the block, with a large expanse of private open space in the front setback to The Point Road.
The consequence of this arrangement is that both dwellings have a view over side boundaries to the private open space of the other.
I consider it to be in the interests of both parties that a degree of privacy be afforded to each property, especially where dispute and acrimony has been allowed to develop.
I understand the Kaldors are prepared to prune and set in train a regime of maintenance for the trees along the common boundary, subject to the terms of that pruning and other works being set out by this Court.

As built drawing is provided

At the close of the hearing, the Court directed the Applicant to provide a drawing of the western elevation of No 66 in the form it has been constructed.
The drawing was provided to the Court on 29 February 2024 (As built elevation) and serves to identify the window numbers and location in the western elevation. The drawing also provides reduced levels that I note vary from those contained in evidence elsewhere, such as the plans titled "Plan of hedges on the boundary, Drawing H01 to H06 (Exhibit B, Tab A), and the Plans marked Annexure C 'DA 2008/1138/1 - Approved Plans' within Mr Waghorn's report (Exhibit 5).
The as built drawing is re-produced, in part, below
The degree of variance is noted, for example at the FFL of the Games Room, served by W4 and W5, that is variously: 1. RL 10.47 (As built elevation) 2. RL 10.16 (Exhibit 5, Annexure C, Drawing W04) 3. RL 10.20 (Exhibit B, Tab A, Drawing H02)
The As built elevation also omits the extent of the large concrete wall to the western boundary, presumably to permit the depiction of the windows located behind that wall. However, in omitting such a significant element of the dwelling under construction, it appears the Applicant omits to acknowledge the substantial contribution this wall makes to enclosing those openings, and so depriving them of access to sunlight and ventilation.
That said the Court has had regard to the reduced levels depicted on the As built elevation on the expectation these levels may be relied upon.

Submissions as to costs

For reasons summarised at [194]-[249], I have made findings as to those trees that have caused, or are likely to cause damage or injury, and those that obstruct sunlight or views, and in respect of which the Court intends to make orders.
In written submissions on closing, the Applicant, and the Kaldors seek to be heard on the question of an appropriate apportioning of responsibility for the costs of any works that arise from the Court's orders. I have taken the view that publishing a decision with preliminary findings such as those at [194]-[249] serves to narrow the scope of any submissions to only those works related to trees about which orders are to be made.

Directions

The Court directs that within 21 days of these orders, the parties are to provide short written submissions on the apportioning of responsibility for payment for the cost of the works in respect of: 1. Pruning and other maintenance; 2. Removal and reinstatement of the existing paling fence in the vicinity of Trees T1-T5, and 3. Any other relevant aspect that arises from the Court's findings at [194]-[249] of this decision.
I certify that this and the preceding 63 pages are a true copy of my reasons for judgment. …………………… T Horton 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: 27 May 2024

Whether the building on No 66 is a 'dwelling'.

The Application refers to damage, or likely damage, and the obstruction of sunlight and views to and from certain locations on the Applicant's land, including vantage points within the Applicant's home.
The Kaldors contest whether the requirement of s 14B of the Trees Act, which applies where there is severe obstruction of sunlight to a window of a dwelling, or any view from a dwelling, is achieved because the building on the Applicant's land is not occupied, and has no occupation certificate that would answer the description of a dwelling.
However, before addressing this question directly, it is relevant to describe the Applicant's property in some detail, and to set out in summary form the history of development on the site as it is relevant to the proceedings.
The current owner of No 66 purchased the property in or around 1988, at which time development on the site was in the form of dual occupancy, with a dwelling located to the south of the block, closer to The Point Road, known as the 'upper dwelling', and a dwelling located to the north of the block, closer to Lane Cove River known as the 'lower dwelling'.
In 2009, the Applicant obtained development consent for the demolition of the upper dwelling, and partial demolition of the lower dwelling, and for the construction of a single dwelling. Subsequent to this: 1. A construction certificate was issued in 2010. 2. Construction began sometime in 2011, and remains ongoing to this day. 3. An Occupation Certificate is yet to be issued.
The building at No 66 is unoccupied, as it has been since 2011, and remains a construction site to this day.
I note when the Court attended the onsite view, the tennis court slab that fronts The Point Road is poured and clearly cured, but was in use as materials storage for the works that are evidently ongoing.
It also became clear during the evidence of the town planners that the history of development on No 66 is also somewhat relevant as to consideration of decisions taken over time by both parties.
In his single expert report (Exhibit 5), Mr Waghorn includes the following plans for development on No 66 that were not objected to, nor contested: 1. Annexure B: DA 2008/1138 Approved Plans 2. Annexure C: DA 2008/1138/1 Approved Plans 3. Annexure D: DA 2008/1138/1 - Approved Landscape Plans 4. Annexure E: DA 2008/1138/2 - Approved Landscape Plans 5. Annexure F: CC 2010/7127 - Plans 6. Annexure G: BIC for 66 The Point Road
In general terms, those architectural plans at Annexure B depict the development for which consent was granted in 2010. The architectural plans at Annexure C depict modifications said by reference to the amendment note in the titleblock to be prepared for Amendment No.4 on 22 April 2021 or Amendment No. 5 on 28 July 2021.
Specifically, the modification schedule that appears on Dwg W05, Annexure C identifies, at 'Fact No. 1.4.15' the following: "Bedroom extended into excavated area and divided to form a study, bathroom and wardrobe relocated."
Two entries in the modification schedule are identified under 'Fact 1.4.16' as follows: "4 windows relocated to suit internal rearrangement of rooms" And "2 windows added to study"
At the same time, it appears the inclinator was relocated to its current position, and the large concrete wall to the western boundary, depicted later at [109], was proposed. A notation on the Annexure B plans that the existing inclinator is to be retained supports such a conclusion.
I acknowledge Mr Maurici's evidence is that the inclinator, and the large concrete wall to the western boundary was built in stages from 2011-2019, however I note this was in oral evidence, prefaced by Mr Maurici as "offhand" and somewhat qualified, and remains at odds with the documents for which consent was granted.
The upshot of all this is that openings to the bathroom and study on the Lower Ground level were not part of the development until sometime in 2021 when consent was granted for the formation of the study and bathroom, noted at [65], and the inclinator and the western wall was relocated directly outside the study, and by which time Trees T11-T22 were in place.
These aspects of the development were approved by the Court in a decision of Maurici v Hunters Hill Council [2021] NSWLEC 1482 (Consent as Modified). The plans described above at [63(2)] and [63(3)] are annexed to that decision.
However, I note virtually identical changes are also identified by revision clouds in Annexure G of Mr Waghorn's expert report, suggesting those same changes at [69] may have been the subject of BC2021-005.
It matters not whether the decision at [70], or the Building Information Certificate at [71] was the source of consent. Both were granted in 2021.
On the face of it, this appears at odds with the Applicant's oral evidence that openings to the common boundary with No 64 were formed in 2013, because consent for openings to the bathroom and study was only obtained in 2021 and were not conceived prior.
Furthermore, while the Applicant's statement (Ex C, par 56) that Trees T11-T22 had not been planted when ceilings were being constructed may be correct for some areas of the building, it appears relevant that the Applicant in closing submissions accepts that Trees T11-T13 were planted between 2009 and 2014, and that T15-T22 were planted in 2020. Trees T11-T22 had therefore been planted prior to the Consent as Modified that approved the inclinator, western wall, study, bathroom and associated windows.
There is no dispute that the Applicant has consent for a dwelling, and that a dwelling is in the process of being constructed. However, the Kaldors submit that the building on No 66 does not answer the description of a dwelling, which is a description to which provisions at s 14B of the Trees Act are directed.
A key difference between the buildings that were on the site until 2011, and the dwelling now under construction, is the number and location of glazed windows and doors now evident on the western elevation that are relevant due to either the overlooking, according to the Kaldors, or for the damage and obstruction of sunlight and views caused by trees on the Kaldors' land.
In its Tree Application, the Applicant makes a comparison of the impact on sunlight and views based on the extent of trees on the boundary in 2008, and 2023.
The Kaldors submit this is the wrong starting point as the openings now evident did not exist in 2008. As such, an analysis that overlays the height or density of trees on the boundary in 2008 on the dwelling now under construction is of little assistance.
As I understand the Applicant's evidence, the relevance of 2008 as a starting point is that is when design of the dwelling now under construction commenced. As such it is relevant to depict the site conditions present at the time of design, because that is when certain assumptions were made as to the size and location of openings, degree of privacy, opportunities for views and the like.
For the reasons set out at [64]-[74], I accept the Kaldors argument that 2008 is not a reasonable comparison as the development at No 66 has been modified since it was originally conceived in 2008, particularly to west-facing aspects of the dwelling now under construction.
Obstruction of sunlight or views must be from a dwelling, according to s 14B of the Trees Act.
Section 14B of the Trees Act provides: 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
The Dictionary of the HHLEP defines a dwelling in the following terms: dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
I accept the building currently under construction on the land at No 66 is consistent with that development for which consent has been granted, being for the purposes of a dwelling, and is capable of being occupied or used, as a separate domicile, being a place of residence, an abode or a house or home rather than in terms of its technical legal meaning as being a permanent resident to which the subject, if absent, has the intention of returning (Wyong Shire Council v Ardi Pty Ltd (2000) 112 LGERA 85; [2000] NSWLEC 253 at [17]). As such, I consider the building at No 66 to be a dwelling for the purposes of the Trees Act.

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