Mediansky v Willmott & anor

G Willmott (First Respondent) S Willmott (Second Respondent) File Number(s): 21024 of 2013

Judgment 1SENIOR COMMISSIONER: Four Fiddlewood trees (the trees), Citharexylum spinosum, are located on the boundary of a property in Woollahra, a boundary that runs what might be described for the purposes of these proceedings generally but not precisely east-west. The trees are located on the northern side of the boundary and the property on the northern side of the boundary is somewhat higher, at ground level, than the property on the southern side of the boundary. 2The reasons for the discrepancy in ground levels is not material in the proceedings, but it is appropriate to note that, on the property to the south, the applicant has planted a row of Camelia sasanquas that abut the boundary and grow to the height of the top of a timber paling fence that has been erected on a low brick retaining wall located, again generally speaking and for purposes that is not necessary to deal with in detail, generally on the boundary between the properties. 3That brick wall has in the past been clad by the applicant with a sandstone fascia to provide a differentiated and more attractive presentation to his property than merely the face of the unrendered low brick wall. The applicant has made an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application comprises two distinct elements, an element pursuant to pt 2 of the Act (which deals with damage to the applicant's property or risk of injury to persons) and under pt 2A of the Act (which deals with high hedges and impacts on sunlight or views). 4There are different jurisdictional tests that need to be satisfied with respect to each of those elements of the application, ones to which, in detail, I will return later. 5With respect to applications under pt 2, s 10(2) of the Act requires that I must be satisfied that the trees that are concerned with the application - that is the four Fiddlewood trees - are causing or are likely in the near future to cause damage to the applicant's property or are likely to cause injury to any persons. 6The damage that has been claimed relates to not only the brick wall but to the fascia that has clad it. It is convenient, at this time, to indicate that I am satisfied that the jurisdiction of the Court for the purposes of pt 2 is engaged at least because of the damage to the top two courses of brickworks - brickwork to the retaining wall that was exposed and is shown in a photograph that became exhibit E in the proceedings. Because of the cracking to the cladding that was evidenced on either side of the location shown in exhibit E, I am satisfied on the evidence given by the applicant that that fascia was also cracked in the area where that fascia has been removed for the purposes of exposing the brick wall. 7As a consequence of jurisdiction being enlivened, there is no necessity (as a jurisdictional prerequisite) for me to make any determination as to whether or not the trees constitute a risk of injury to any person. 8With respect to pt 2A - that is the high hedges part of the Act - there are separate and different jurisdictional tests that are set out in s 14A of the Act. Section 14A requires me to be satisfied, first, that there is a group of two or more trees. It is self-evident from the site inspection that that is the case. 9Second, it requires that I be satisfied that they were planted so as to form a hedge. I am satisfied, firstly, that they were planted, that being the agreed position and, secondly, that they have the effect of forming a hedge - that not only being the agreed position but also being self-evident from the observations that were undertaken during the course of the site inspection. There is also no doubt whatsoever that they rise to a height of at last 2.5 metres above existing ground level. 10With respect to the tests under both pt 2 and 2A there is no issue arising as to the satisfaction by the site of the trees of the relevant zoning tests. 11I undertook an inspection of both the property upon which the trees are located and the applicant's property on 26 February. I was accompanied by the legal advisors of the parties, Mr Doyle, counsel for the applicant, and Mr Farland, solicitor for the respondents. I was also accompanied by the expert arborists retained by each of the parties, the expert engineers retained by each of the parties, and by Mr Moody, a town planner retained by the respondents. 12After the conclusion of the site inspection on that day the matter returned to be continued for a hearing in court when evidence was heard dealing with engineering matters. During the course of the site inspection, I inspected the applicant's property to gain an appreciation of the three windows that are the foundation of the application pursuant to pt 2A and to inspect the retaining wall and the fascia, the retaining wall being able to be inspected solely to the extent of the area depicted in exhibit E and a second area toward the eastern end of the retaining wall in the vicinity of the freestanding studio on the applicant's property. 13A significant length of the fascia along the area of the brick wall that is the subject of the application was not exposed by removal of the fascia, that being a matter to which I will return further as it impacts on the nature of the conclusion that I have reached. 14We also undertook any inspection inside the applicant's property to understand the perspective of the windows that were of concern. We undertook an inspection of the trees themselves, both from the applicant's property and from within the respondents' property and, finally, we inspected the private open space area of the respondents in the vicinity of their pool and the upper eastern-facing balcony deck area of their house. 15During the course of the inspection, Mr Moody, accompanied by a representative of the applicant, undertook an assessment of the height of the trees that would be necessary to be maintained to prevent overlooking of the respondents' private open space pool area and to prevent overlooking of the private open space and window to the informal living area on the applicant's property from the upper balcony area of the respondents' property. It was agreed that the height of the trees that would be the minimum necessary to provide appropriate protections of that nature for each of the locations would be of the order of 4 metres. 16Also in attendance, as I have earlier indicated, were arborists on behalf of the parties, Mr Palmer for the applicant and Ms McKenzie for the respondent, and engineers for the parties, Mr Bennett for the applicant, and Mr Jeffrey for the respondent. 17It is convenient for the purposes of understanding the overall conclusion to which I have come to address the pt 2A application in the first instance. 18The windows on the applicant's property that form the basis of the application are three-fold. The first is a window to an informal living area immediately adjacent to the kitchen. I observed that, although Mr Moody made some criticism in his Statement of Evidence about the extent to which that informal living area might be able to be used and, in fact, in his opinion was likely to have been used by the applicant, that was contradicted by evidence given by both the applicant and his wife as to the use that they made of that area. Although Mr Moody's speculation was based on the dimensions and furnishing of the room area adjacent to the window I accept the uncontradicted evidence of the applicants of the use that they make of it. 19I might add, in that context, that, although that area might be described as informal, the larger living area further to the south within the dwelling might correctly be characterised as being a very formal lounge area of - I say this with the greatest respect to the applicant - more of an ambience of a past era in utilisation of space than might be the case of a more exuberant household than that which he and his wife have. As a consequence of that, I accept unreservedly that the area described as the informal living area adjacent to the window plays a significant and important function in the life of the applicant and his wife. 20The second window was one to a bathroom. A window to a bathroom is not a matter of concern of any significance whatsoever in the context of these proceedings. Whilst access to light through a translucent or filtered glass is perhaps relevant, it is not a question that gives rise to great consideration under pt 2A. 21The third area of glazing were two French doors to the principal bedroom of the applicant's residence and it is likely, as I will discuss further, that there is an interruption of sunlight to those windows although, again, for reasons of the likely times of day when that room would be used - that is in the early morning or the late afternoon - it is not a matter of as great a concern as to the private living space adjacent to the kitchen. 22Although the applicant raised in correspondence over the years that formed part of the application concern about the loss of sunlight to the private open space immediately adjacent to his boundary with the respondents' property, that is not a matter that falls within the jurisdiction of the Court to be considered as to sunlight matters arising under pt 2A. 23I observe at this time that Mr Palmer, the applicant's arborist, appended as part of his report shadow diagrams that purported to show what the shadow impact on the applicant's property would be at the winter solstice. There are a number of observations that I need to make with respect to these diagrams. First, Mr Palmer put the north point in the wrong direction by a matter of some 8 to 12 degrees. Second, the plans were plans that were of the horizontal impact and were not plans in elevation and that provided no effective assistance on that point and, finally, the shadow diagrams took no account of the overshadowing that would be occasioned by the respondents' dwelling, a dwelling that is both above the level of the applicant's dwelling and is of a two storey configuration. 24As a consequence, I found that Mr Palmer's shadow diagrams provided no evidentiary assistance whatsoever and I was forced to rely on my own considerable experience with shadowing issues (not only under this legislation but in the more general planning jurisdictions of the Court) to make the assessment which I have undertaken in these proceedings. 25I have earlier indicated that the living area that is relied upon, as I understood it, principally by the applicant - that is the informal living space immediately adjacent to the kitchen - is, I accept, an integral and very important element of the lives of the applicant and his wife. Loss of sunlight to this space at the winter solstice, in my assessment, would be considerable with the trees at their not only present height but to the extent of their eastern spread. 26One element that contributes to the early morning impact on the window is the two lesser leaders of the eastern most of the Fiddlewood trees. 27During the course of the site of the site inspection, I raised with the respondents whether there would be any objection to orders that I might make if the orders were not to be for the removal of the trees in their entirety - that being the position sought by the applicant - but that the two minor leaders of the eastern most Fiddlewood tree should be removed. That position was agreed to on behalf of the respondents and will be encompassed in the orders that I propose to make. 28Second, the height of the trees themselves as the sun transits the sky from morning until some time in the early afternoon will provide a significant impact on the sunlight that is available to the kitchen living space window. After about 2 pm or thereabouts, it is my intuition that a combination of the trees and the roof line of the respondents' house, if the trees were to be pruned or removed, will also have an impact on the amount of sunlight to that window and would also impact on the amount of sunlight available to the French doors. 29It is necessary, pursuant to s 14D(1)(a) of the Trees Act, that I be satisfied that there is a severe obstruction of sunlight to a window of a dwelling and if I am so satisfied I can then consider what orders might be appropriate to remedy, restrain, or prevent such severe obstruction. 30On balance, I am satisfied that the obstruction of sunlight to the window of the informal living area in the kitchen adjacent to the kitchen is a severe obstruction. Second, I am satisfied that the removal of the two leaders at the eastern end of the row of Fiddlewood trees would not sufficiently lessen the obstruction of the sunlight to the window of the informal living area so as to cause it not to satisfy the test of being severe. 31I am therefore satisfied that merely making the orders for the removal of those two leaders at the eastern end of the row of Fiddlewood trees will not provide sufficient cure to the obstruction of the sunlight to that window. I am also satisfied as a broader proposition that remedying the obstruction - severe obstruction of the sunlight to the window of that living area - will, by so doing, provide an ameliorative effect on the other two windows that are pleaded without making the necessity for a precise finding as to whether the obstruction on those places are severe or not. 32I should, at this time, observe that the applicant seeks, as his primary remedy to resolve all of the issues under both pt 2 and pt 2A, the removal of all of the Fiddlewood trees; whilst the respondents' position is that it would be appropriate for them to prune the trees and have them maintained as pruned to a level of 5.5 metres above the natural ground level. 33Section 14F of the Act requires me to consider relevant matters out of the range of matters that are set out in that provision. I am satisfied that those that are relevant are s 14F(a), (g), (h), (k), (l), (m), and (r). I have earlier described the location of the trees. They are offset from the boundary onto the respondents' property by some 600 millimetres or so. 34There is no doubt in my mind that, for the purposes of s 14F(g), they make some modest contribution to the local ecosystem and biodiversity as birds were able to be observed in the trees during the course of the site inspection. It is also obvious that they make, consistent with 14F(h), a contribution to the landscape of the vicinity as they are able to be observed not only from the lower side public domain but also from the higher side public domain. 35I need to consider, as I will deal with in considering the arborists' evidence shortly, the impact that pruning might have on the trees. 36I have earlier outlined the contribution that they make to privacy, a contribution that is made to both the property of the applicant and the property of the respondents. 37I have already noted, as is relevant for s 14F(m), that the obstruction of sunlight will be affected at least in part by the roofline of the respondents' premises, that being a contribution that I am required to take into account and, finally, I have outlined consistent with 14F(r) the nature of the elements of the building where the obstruction will take place. 38It was Mr Palmer and Ms McKenzie's agreed position that, even if I were to require pruning from the present height of some 10 or 12 metres to a height in the vicinity of 4 metres, the trees would survive and would in all probability continue to provide significant (and probably rapid) epicormic growth as such growth had been evidenced on the trees as a result of earlier pruning. 39It is the respondents' desire to retain the trees for outlook, amenity, and privacy reasons. It was able to be observed during the course of the site inspection (and not contradicted by any opinion expressed by either Mr Palmer or Ms McKenzie) that the trees are in good health and good vigour. In fact, I think it is the opinion of the applicant that there may well be excessive vigour in the growth of the trees! There were no defects observed in the structure of any of the trees such as included bark. 40It was Mr Palmer's view that, if pruning to the height that would be necessary were to occur, it would be something that would lead to the inevitable long-term decline of the trees and, if that were to occur, the respondents would need to consider in the future some further and more dramatic intervention with the trees. It was Ms McKenzie's opinion that that was not likely to occur. 41However, whether or not it is likely to occur is a matter that should be of concern to the respondents only, provided appropriate remedies are granted to the applicant in these proceedings. 42Accepting that it is possible to prune to an appropriate level, there is no reason under pt 2A why there should be an order for the total removal of the trees - provided there is some ongoing maintenance regime provided for in the orders. It was agreed, during the course of the site inspection, that, if pruning were to be ordered, because the trees are only semi-deciduous and that the time when there would be greatest benefit to the applicant of sunlight to the relevant windows, any pruning should be effected during the month of April to maximise the winter sunlight to the windows (given the likely vigorous growth that might be experienced epicormically from the Fiddlewoods after such pruning). 43Therefore, I am satisfied that, after consideration at this time solely of pt 2A issues, it would be appropriate to order pruning of the trees to a height of approximately 4 metres or a little above that by the end of April and to require pruning to that height to be undertaken on an annual basis. 44It was also observed during the course of the site inspection that there was a large volume of foliage that was growing over the fence from the respondents' property to overshadow the applicant's. It is likely that if there is not to be pruning of that foliage at the same time as the height reduction pruning there may be a leading edge effect would be retained that would cause shadowing. 45I am not in a position to undertake a detailed assessment of that but prudence would dictate, in my opinion, that if pruning is to be ordered to provide height reduction that it is also appropriate to order pruning of the foliage on the applicant's side of the fence back to the boundary fence at that time. 46Before confirming that conclusion in the orders, it is necessary to turn to the question of a pt 2 assessment - as part of the concerns that were expressed relating to impacts on the retaining wall and the sandstone fascia were based on what is known as the sail effect on the trees as a consequence of the height of their foliage. 47During the course of the site inspection, portion of the brick wall had been exposed by the removal of the sandstone fascia (as depicted in exhibit E). In addition to the removal of the sandstone fascia as depicted in exhibit E, there was a small section of sandstone fascia also removed toward the eastern end of the wall. 48The fascia that was removed and depicted in exhibit E runs to the east from the third supporting upright of the fence from its eastern end. What was exposed as a consequence of the removal of the sandstone fascia was that there was a displacement of the top two courses of brickwork, the brickwork being at that point approximately 550 or 600 millimetres high. 49The element that was exposed at the other end showed no displacement of the brickwork and showed a packing behind the sandstone fascia that had been used to stand the sandstone fascia out from the brickwork as a consequence of a corbelling course of bricks at the upper end of the retaining wall - a corbelling course that was not in evidence for the portion of the wall exposed and shown in Exhibit E. 50I am satisfied that the cracking in the fascia, (accepting the applicant's evidence that the fascia that had been removed at the area depicted in exhibit E was also cracked), and the displacement of the upper two courses of the brickwork in the retaining wall in the vicinity as depicted in Exhibit E satisfies the necessary test under s 10(2)(a) of the Act. It is therefore necessary for me to consider what orders, if any, are appropriate to be made in light of a conclusion that I have also reached about the appropriate position under pt 2A. 51This is of significance given that the sail effect of wind pressure on the trees at their present height was a matter of concern to the engineers in their discussion of the likelihood of failure of the retaining wall. 52I am satisfied that pruning to the height that I propose to order (which will have the effect of bringing the trees down to their current most substantive trunk height) will significantly reduce the sail effect and make it unlikely that there would be any collapse of the retaining wall as a consequence of rotational pressure on the root systems of the trees. It was my understanding that the engineers accepted this broad proposition and that the removal of the upper portion of the trees would not necessitate the complete reconstruction of the retaining wall for pressure reasons. 53The wall has been there for a very long time, as have the trees. The damage that has been occasioned by the trees, trees that have been of substantial size for many years, is only to the upper two courses of the wall. There was some fretting to the mortaring of the lower elements of the wall, but there is no evidence that that is caused by the tree. It is, in my experience, more likely to have been caused by water transmission through the mortar. Although there were some root penetrations obvious, the root penetrations themselves were not causing significant damage (or in some instances any damage whatsoever) to the wall. 54As a consequence, I am not satisfied that there is any need for complete reconstruction of the wall. Any reconstruction, in my assessment, is required to make good the upper courses of bricks to the extent that they are able to be demonstrated to be displaced. It is also reasonable - to the extent that the fascia has been cracked - to require its reinstatement, including the reinstatement of the fascia that has been removed in the area that is depicted in Exhibit E. 55Before considering what orders I should make, similar to the provisions that are required in pt 2A, pt 2 requires (in s 12) that I consider a number of matters that are in common with those that I have earlier adverted to and ones that I do not need to re-address. They are contained in s 12(A), (b3), (d) and (e). 56The only additional matter that needs to be considered is anything that might arise with respect to the likelihood of injury to any person and, as I am satisfied that there is not likely to be any catastrophic failure of the trees as a consequence of any failure of the retaining wall or of any sail effect on the trees, there is no need to make any further detailed assessment pursuant to s 12(i)(i) of the Act. 57The applicant's consulting engineer, Mr Bennett, provided a statement (Exhibit D) in which he postulated the costs of undertaking repairs to the wall or to the sandstone fascia. That costing was based, in his option 1, demolition and rebuilding of the wall, in effect, in situ without anything of any greater substance than that. He did provide another option that was what one might describe as a far more expansive dimension but one which I am satisfied it is unnecessary to consider given the conclusion that I have reached about what is required to be undertaken. 58The effect of his costings was that for reconstruction of the brickwork and removal and replacement of the cracked flagging, a cost of approximately $1,100 per square metre plus GST was appropriate, giving a costing of approximately of $1,210 per square metre. Mr Bennett assumed that an area of 6 square metres would need to be dealt with for these purposes. I am unable to accept that proposition based on our inspection of the area of brick wall exposed in Exhibit E and contrasting it to the state of the brickwork exposed in the smaller element where the fascia had been removed further to the east. Second, I have not been prepared to accept that the totality of the wall needs to be replaced, merely the upper two courses. 59The brick wall is, on Mr Bennett's evidence from p 1 of Exhibit D, one which varies from 400 millimetres to a metre in height along its length. The length is approximately 6 metres from the third upright in from the eastern end of the wall to the eastern end of the wall itself. It is not immediately clear to me how something that is approximately 6 metres long and varying from 400 millimetres in height to a metre in height results in 6 square metres as the basis of calculation, this seems to me to derive an area of at most about three and a half or four square metres. 60The exposed element at the east demonstrates that there is no damage to the wall at that point. It is not appropriate, therefore, to apply the costings that Mr Bennett has derived the totality of that area. It is not reasonable to assume that the top two courses of brickwork that are appropriate to be rectified need to be rectified for the whole of the length of the relevant portion of the wall because the evidence is to the contrary on this point. 61Unfortunately, I am left to make an assessment on incomplete evidence because the applicant chose to expose portion of the wall that which is shown in Exhibit E and was able to be observed on the site rather than removing the totality of the fascia with respect to which he seeks orders. To some extent I am, therefore, left to speculate about what might be behind the unremoved area of the fascia. It is something that is not able to be cured in an evidentiary sense by some future application (as was discussed in judgments given by me in Zangari v Miller (No. 2) [2010] NSWLEC 1093, and McCallum v Riordan & anor [2011] NSWLEC 1009). 62As a consequence, I have been left (on such evidence as I do have) to undertake a rough calculation as to what might be the area of wall needing to be replaced and the area of fascia that might need to be removed and re-erected. I am satisfied that, doing as best I can on such evidence as I have, that I should conclude for the purposes of applying Mr Bennett's costings that I should treat it as somewhat less than 2 square metres. 63The respondents' liability for works, therefore, in my view, should be limited to something that corresponds with an amount equivalent to a little less than 2 square metres of work. 64It is clear that any work that is to be undertaken to the brick wall and to the fascia should be undertaken by the applicant and be undertaken on a reimbursement basis. I also observe that consistent with the decision in Hinde v Anderson and anor [2009] NSWLEC 1148 that, if circumstances change materially, it is open to the applicant to make a further application with respect to those changed circumstances (but consistent with Zangari and McCallum, it is not appropriate for the applicant to make some further application based on evidence that could have been available for the purposes of these proceedings). 65The power to make orders under pt 2 is set out in s 9 of the Act, the relevant provision being ss 9(2)(e) and (h) - that is to authorise the applicant to take specified action to remedy the damage that has been occasioned to the property and to require the payment of costs by the respondents associated with the carrying out of that order. With respect to the application under pt 2A, ss 14D(2)(a), (b), and (c) permit me to require the taking of specified action to remedy the obstruction of the sunlight and to require the taking of specified action to maintain a tree or trees at a certain height, width, or shape for those purposes.