Murphy v Moeskops

Land and Environment Court (NSW)|2021-09-15

Background to the application

COMMISSIONER: As its name proclaims, The Hill rises above the surrounding beaches, parks and Newcastle's CBD, its residential lots filled with historic houses and units. Richard and Chris Murphy ('the applicants') own a three-level building on the hill, in The Hill. They live in the dwelling on the top floor, renting out the two lower apartments, one on the ground floor, the other on the second floor. The back of their dwelling faces east, separated from the rear boundary by a small courtyard outside the ground-floor unit. On the other side of the boundary fence is a row of five lilly pillies ('the trees') growing in a courtyard garden belonging to Christopher Moeskops ('the respondent'), whose property extends around the southern and eastern sides of the Murphys' property. Although the trees were there when the Murphys bought their property in 2014, they have grown taller and wider, reducing the Murphys' access to sunlight and views. They have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the lilly pillies to be pruned and maintained at a height no greater than 3.5 metres.

Framework for this decision

Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The applicants made reasonable effort

The Murphys submitted that conversations between the parties in late 2020 and early 2021 followed the Murphys' attempts to prune back branches overhanging their property from Mr Moeskops' trees. The conversations were not friendly in nature and did not lead to any agreement between the neighbours. Mr Moeskops was willing to prune branches overhanging the boundary but was not prepared to reduce the trees' height. In April 2021 the Murphys wrote to Mr Moeskops outlining their issues with the trees, along with other issues relating to their properties and the nature of communication between the neighbours. They proposed an agreement between the neighbours, included a copy of the draft agreement with their letter, and asked Mr Moeskops to return the draft with any proposed edits. Mr Moeskops, in his affidavit of 27 August 2021 (exhibit 1), wrote at paragraphs 14 and 15: "14. Given there was a history of disputes with my neighbours, the letter and document were not well received. My neighbours had previously built the rooftop deck… without approval and without consultation of me or other affected property owners. My neighbours subsequently sought and obtained retrospective approval of the extension. 15. I considered the document to be factually incorrect and inflammatory. In light of the nature of the document and the allegations made by my neighbours, I was not prepared to respond or to enter into any negotiations. I dispute that the letter and document constituted a proper attempt by my neighbours to negotiate or enter into any type of reasonable agreement."
It is clear to the Court, and I take it that the same was apparent to the Murphys, that Mr Moeskops was unwilling to reduce the trees' height and unwilling to negotiate. Should they want to press for some resolution, the Murphys were left with little choice other than commencing these proceedings. I find that their efforts to reach agreement with Mr Moeskops were reasonable.

The trees are planted so as to form a hedge

The five lilly pillies, an unidentified Syzygium cultivar, grow in a straight line in a garden bed next to the common boundary. Their foliage interconnects, forming a screen along the boundary. Mr Moeskops did not plant the trees - they were here when he purchased his property in 2017. The planter of the trees is unknown, but their intentions seem clear. The trees were planted to from a screen along the boundary, a function which they have achieved and continue to achieve. The trees are roughly 4-7 metres tall (exhibit C, p 2). The trees are planted to form a hedge more than 2.5 metres in height, so Pt 2A of the Trees Act applies to these trees (s 14A(1)).

The trees severely obstruct sunlight

The Murphys claim that the trees severely obstruct sunlight to the rear window (W1) of their ground floor unit. This 'window' is a large glass door providing access between the dwelling's living areas and the courtyard.
The Murphys provided shadow diagrams, prepared by Mr Murphy, who is an engineer. The diagrams are not expert evidence and cannot be given the weight of expert evidence. Nevertheless, comparison of the shadow diagrams with time-stamped photographs shows that they are more than reasonably accurate and can be relied upon to represent the situation.
The glass door (W1) faces approximately east. The trees are to the east, approximately 4.4 metres from the dwelling's rear wall containing W1 (survey plan, exhibit C, p 7), or 4.6 metres from the wall (respondent's statement, para 22.a, exhibit 1). The trees are approximately 4-7 metres tall (exhibit C, p 2, based on survey plan, exhibit C, p 7). In summer, W1 might receive sunlight right through the morning. Other obstructions to the east are further distant. In mid-winter, with the sun in the northern sky, sunlight to W1 is obstructed by the dwelling on the adjoining property to the applicants' north, partially at 9:00 am and fully from 10:00 am onwards. Photographs in exhibit C (p 6) verify this. Before 9:00 am, W1 would be almost fully in sunlight if not for the hedge, apart from the very lowest part of W1 where some shadow from the fence reaches.
Mr Moeskops disputed the trees' contribution to sunlight obstruction, stating at para 22 of his affidavit (exhibit 1) that other buildings are casting the shadows. Mr Moeskops included a photograph of W1 taken from his own property (Photo 1, exhibit 1). Ms Skinner submitted that the photo may show some shadows from the trees, but it also showed the proximity of neighbouring buildings. Where the Murphys submitted they lost 2-3 hours of winter morning sunlight, Ms Skinner submitted it was at most one hour lost, and this would not be considered severe.
I find that Mr Moeskops' photo referred to above supports the applicants' claim, and I include a copy of it here.
The photo is not date-stamped. It is not taken in mid-winter. W1 is at the bottom of the applicants' east-facing wall in the left half of the photograph. The lilly pilly hedge can be seen on the right. Shade from the hedge falls across the lower part of the applicants' wall up to the windows on the second floor, completely shading W1. Shadow from the building on the adjoining property to the north can be seen across the very northern (far) end of the applicants' wall. During summer, W1 would receive some sunlight during the later part of the morning, once the sun is above the lilly pillies and until around midday. During winter, when sunlight access is most appreciated, sunlight to W1 is fully obstructed by the lilly pillies until 9-10 am, when the northern building's shade falls across W1.
Mr Moeskops disputed that the trees form a dense screen and instead suggested they allow sunlight through (para 22.b, exhibit 1), referring to Photo 11 in his affidavit. That photo shows only the trees' lower stems, which are below the dense screen of foliage, whereas the photo included above (Photo 1 of Mr Moeskops' affidavit) shows the density of the trees' shadow cast directly onto the Murphys' wall. Mr Moeskops stated (para 22.h.ii, exhibit 1) that Photo 1, above, shows that the trees do not obstruct sunlight to the level 2 windows, but the Murphys do not claim sunlight obstruction to W2. Their claim regarding sunlight obstruction relates to the window on the ground floor (W1), which is completely shaded by the trees in Photo 1.
Morning winter sunlight is highly valued. The trees are evergreen - their obstruction does not retreat in winter. Whether or not W1 receives the recommended amount of winter sunlight according to planning guidelines, it is true that the only available winter sunlight to W1 is obstructed by the trees: see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462 at [33], [34]. Were it not for the trees, the occupants of the ground-floor unit could enjoy morning sunlight until 9-10 am in mid-winter, and until later than that during spring and autumn. As it is, W1 receives no mid-winter sunlight. I consider this obstruction to be severe.

The trees severely obstruct a view

The Murphys submitted that the trees severely obstruct the view from the east-facing window (W2) at the rear of the second-floor unit. The photograph they provided (exhibit B, attachment D), taken looking out through the glass louvres of this window, shows the dense screen of the lilly pillies across the bottom part of the view, some sky above, and another tree further to the south ('the southern tree'). The photograph taken toward the same viewing angle from the applicant's living room window on the third floor, directly above W2, shows the sky at the top and the southern tree at the right, but the viewer is now above the top of the lilly pillies and can see the back of the dwelling further to the east ('the eastern dwelling'), and between the eastern dwelling and the southern tree is a relatively narrow view of the trees and grass in King Edward Park and the blue water of the Pacific Ocean.
Mr Moeskops' rebuttal of the Murphys' evidence is factually incorrect in places. He wrote that the photo from the Murphys' third-floor window referred to in the previous paragraph was taken from their rooftop deck, a further level higher. The Murphys have provided evidence demonstrating that the photo was taken from their third-floor unit.
Mr Moeskops provided photographs taken from his property at the same level as W2, relying on these to demonstrate that the view from W2 would be nothing like the view from the Murphys' third-floor window. Being south of the Murphys' dwelling, the view from Mr Moeskops' dwelling is different. For instance, as his photos demonstrate, the view corridor between the eastern dwelling and southern tree, available from the applicants' third floor, is not available from Mr Moeskops' dwelling due to the different angle.
I accept that the view from W2, lacking the height of the third-floor windows, might include less of the park and less of the ocean than can be seen from the third floor. Nevertheless, parts of the trees and the water view would remain in this view corridor, but are completely obstructed by the trees. This finding is supported by 'Photo 19' in exhibit 1, taken from the street east of the eastern dwelling, looking back to the window above W2, which is obscured by a tree next to the eastern dwelling. Although that tree would obstruct a view of the street from W2, the elements of the view behind the photographer, more distant from W2 than the street, would be available in the view corridor that is clearly available in this photograph. There are other obstructions, including the eastern dwelling and the southern tree already mentioned, but glimpses of water are highly valued. Furthermore, rather than an outlook of landscape that might include dwellings, the viewer at W2 is faced with a solid screen of foliage. At window height, this screen is less than 4 metres from the window, as the foliage spreads across the boundary toward the window, shown in the photograph above. I am satisfied that the trees in the hedge severely obstruct the view from W2.

Relevant matters

The trees meet both arms of the jurisdictional test at s 14E(2)(a): they severely obstruct sunlight to a window of the applicants' dwelling, and they severely obstruct a view from the applicants' dwelling. Before making any orders, I must consider the matters at s 14F of the Trees Act. I discuss those that are relevant below.

Location of the trees

The trees are close to the boundary, planted in a narrow bed next to the boundary fence. Their branches and foliage spread across the boundary.

Tree height when the Murphys purchased their property

The trees were already more than 2.5 metres tall in 2014 when the Murphys bought their property. Although the Murphys wrote in their application that the trees were 1.6 metres tall in 2014, they wished to correct this during their submissions. The Murphys submitted that they noticed the hedge after removing two trees on their own property in November 2014, at which time the hedge was slightly above the top of the fence, which is up to 2.5 metres tall. They submitted that the hedge was 2.8 metres tall in 2014. This would be supported by the trees' average growth rate of more than 50 centimetres each year, they argued, resulting in the trees' current height of up to 7 metres.
It is not only the 2.5-metre threshold that is relevant, but also the height of the trees at the time the applicants purchased. Where the Trees Act might not explicitly state how the Court is to consider the matters at s 14F, relevant background material can assist the Court. The 'Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)' ('the 2009 Review') recommended (at Recommendation 9(b)) that the scope of Pt 2A of the Trees Act be limited. My emphasis is added below in bold. "b) That this jurisdiction be strictly limited, with applications restricted to hedges which: • are both high and give the effect of a solid barrier, and • are causing severe impact for a dwelling, and • have caused the impact to the applicant (not to the previous occupant), and • are located between neighbours on adjoining land."
I have highlighted the first bullet point only because it is relevant to my findings at [14] and [19]. The third bullet point is relevant here. The trees were more than 2.5 metres tall in 2014, but they have caused impacts to the Murphys' dwelling during their period of ownership. Ms Skinner submitted that the Murphys do not live in either Unit 1 on the ground floor or Unit 2 on the second floor, so it would have been appropriate for the affected occupiers to apply to the Court or to give evidence in these proceedings. Ms Skinner argued that there was no evidence before the Court that shows the trees' impacts to the occupants. That may be so, but the Murphys own all three dwellings and the impacts to the dwellings have been shown; the Murphys have applied to the Court as enabled at s 14B; and the applicants' dwellings have been impacted by the trees during the applicants' period of ownership. While the occupants of Unit 1 and Unit 2 are directly affected by the trees, I am satisfied that the Murphys, as the owners of those dwellings are also impacted. Access to views and sunlight affect property values, so the Murphys would potentially be impacted when reletting or selling their dwellings.
Mr Moeskops, who did not own his property when the Murphys purchased theirs in 2014, estimates that the trees were 4.5 metres tall in 2014. He relied on promotional photographs of his own property, downloaded recently from a real estate website, apparently taken in 2010 and 2017 (the '2010 photograph' and '2017 photographs' respectively). Ms Skinner submitted to the Court that the photographs show the trees were already well established in 2010, well before the Murphys came to their property. Promotional real estate photographs have been provided in other tree matters. In my experience, they can be useful, but are not always reliable, for while they may have accompanied the sales campaign of a property at a given time, there is often no evidence demonstrating when the photographs were actually taken. The 2010 photograph shows an established hedge of mature trees where the lilly pillies now are, but they are not the lilly pillies. The trees in that photograph are a different species with larger leaves. This finding is supported by the 2017 photographs, which show the lilly pillies in situ, their relatively narrow stems indicating they were planted more recently than 2010. I accept that by 2017 they were well above fence height. To me, the photographs support the Murphys' submissions. I find that the trees were approximately 2.8 metres tall when the Murphys purchased their property, so at that time they had access to the views and sunlight that would be available above trees at a height of 2.8 metres. They now seek orders for maintaining the trees at a height of 3.5 metres.
When the Murphys purchased their property two large trees grew in their back garden. According to the Murphys, they removed these two trees in November 2014. Ms Skinner submitted that the two trees obstructed the Murphys' access to sunlight and views when they purchased. That may be so. Adduced evidence does not show the extent of any obstruction. It is clear, though, that once those trees were removed, the Murphys had access to sunlight and views available with the lilly pillies at a height of approximately 2.8 metres. Their view and their access to sunlight have become obstructed by the lilly pillies during their ownership of their property.

Requirements for consent to prune or remove the trees

The Murphys submitted that they do not require consent from Newcastle City Council ('Council') for pruning overhanging branches. However, clause 5.03.01 of the Newcastle Development Control Plan 2012 ('the Newcastle DCP'), which declares vegetation requiring Council consent to clear or prune, includes all trees that are more than 3 metres tall. Pruning exemptions at clause 5.03.03 of the Newcastle DCP include pruning for the purpose of hedging, but only of shrubs less than 5 metres tall. Pruning the trees, which are up to 7 metres tall, therefore seems to require Council consent. Council consent would not be required for any pruning the Court orders in these proceedings (s 7 of the Trees Act). If the trees were pruned and were less than 5 metres tall, then on my reading, Council consent would no longer be required for ongoing pruning to maintain the hedge.

Benefits of the trees

Like all trees, these lilly pillies provide environmental benefits, ecosystem services and some potential habitat. These values are not significant, nor would they be lost if the trees were pruned. The trees have no intrinsic value to public amenity, nor any historical or cultural value.

Impacts of pruning

Lilly pillies are tolerant of pruning for the purpose of hedging. Cultivars that are popular in nurseries have been selected for their suitability to hedging and to be used as screening plants. These five lilly pillies have not been pruned for some time, so their height has increased at the expense of their lower foliage, which is now somewhat sparse. Pruning to the Murphys' proposed 3.5 metres would remove the majority of the trees' foliage, temporarily resulting in a loss of their screening effect. However the trees would grow new foliage from what remains, and they would recover and could be maintained to provide screening again in future.

Landscape and privacy

The trees contribute to the landscape of Mr Moeskops' property; they provide greenery and shading; and they soften the built form. Most importantly, they provide visual screening between properties. From the third floor and roof deck of the Murphys' property, the trees screen and prevent overlooking to Mr Moeskops' courtyard area and to the eastern dwelling. The owner of the eastern dwelling, Stephen Smith, is not a party to these proceedings, but wrote a letter (exhibit 2) in support of Mr Moeskops' response to the application. Mr Smith expressed his concern at the potential loss of privacy that would result from pruning the trees. He also wrote that he would prefer to see the trees when looking to the west, not the applicants' "unattractive and generally obtrusive" dwelling. It is clear from the letter that, like Mr Moeskops, Mr Smith resents the development of the Murphys' roof deck and its subsequent approval. The western wall of Mr Smith's dwelling and the eastern wall of the Murphys' dwelling are more than 15 metres apart. Photos 2-7 accompanying Mr Moeskops' affidavit (exhibit 1), taken from the third level of Mr Moeskops' dwelling, are informative. In Photo 2, the viewer's eye is above floor level of the Murphys' roof deck. Photo 4 shows that Mr Smith's ground-floor window is overlooked from Mr Moeskops' property. Photo 6 shows that one ground-floor window of Mr Smith's western wall is a short distance from his tall boundary fence. Other windows on the ground level are covered with a pergola. Only one small window on Mr Smith's upper floor faces west. Impacts to Mr Smith of shortening the hedge would not be significant.
The Murphys submitted that Mr Moeskops' outdoor area to the east of their dwelling is not a primary outdoor area. While the hedge screens this area from their upper levels, the Murphys submitted that the area is infrequently used.
The Murphys submitted that they gained approval for their rooftop deck prior to its construction. Retrospective approval was sought, and granted, for (among other modifications) relocating a glass balustrade to the outer face of a planter box along the deck's eastern edge.
Pruning the trees as the Murphys propose would inevitably increase the potential for overlooking into Mr Moeskops' property. However the principal views for these east-facing windows, and for the rooftop deck, are outward to the landscape, not downward to Mr Moeskops' garden. The expectation for complete privacy in this built-up area with multi-level dwellings is perhaps unreasonable. Well-planned vegetation can reduce overlooking impacts and can reduce a feeling of exposure, but a 7-metre solid wall would not be permitted on this boundary, so the privacy that such a wall would provide might not be reasonably expected.
The Murphys submitted that pruning the trees would ultimately increase the amount of foliage closer to the ground. This would improve screening between the properties' ground-floor areas where privacy is more of an issue. I see some merit in this.

Other matters

I have considered elsewhere other relevant matters at s 14F including: other landscape elements contributing to any obstruction; steps taken by the parties; the nature of the trees; the hours of sunlight obstruction; and the nature of the views. The areas affected by both sunlight and view obstruction are living areas that are likely to be used frequently.
The Court is also to consider at s 14F(s): (s) such other matters as the Court considers relevant in the circumstances of the case.
Hedges are sometimes planted and maintained cooperatively, but more often they are planted unilaterally when a property owner establishes a row of trees, usually along a boundary, for their own benefit, usually for some screening for privacy. They might maintain the top of the hedge and its face on their side. They might maintain the face of the hedge on the neighbour's side, but more often this is left to the neighbour. Rarely does the hedge planter leave space between the hedge and the boundary to allow access for maintenance. The result is that a neighbour might be left with the uninvited task of maintaining a high hedge: see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462 at [98]-[104]. This can also require regular applications for Council consent. Mr Moeskops has offered to prune branches overhanging the Murphys property. Considering the nature of the relationship between these neighbours, I find granting regular access for Mr Moeskops to the Murphys' property for pruning is not appropriate. After the initial pruning event, pruning overhanging branches is best left to the Murphys, but the challenge of this task should be minimised by limiting the trees' height. The Murphys have proposed maintaining the trees at a height of 3.5 metres, which seems reasonable. For the hedge to be maintained at a height of 3.5 metres, the initial pruning should be lower, allowing for regrowth to be pruned thereafter rather than repeated pruning at the woody stems. For simplicity here, the boundary fence will be used as the reference point, with the initial pruning 50 centimetres above top-of-fence, and ongoing pruning thereafter at one metre above top-of-fence, stepping up or down with the fence along the hedge as might be the case.

Conclusion

Trees in the hedge severely obstruct sunlight and views such that they meet the jurisdictional threshold at s 14E(2)(a) of the Trees Act. Having considered the relevant matters, I find that the Murphys' interests in minimising the obstruction outweigh reasons to avoid interfering with the trees. Orders will therefore be made to reduce the height of the trees and to remove overhanging branches.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the orders below. 2. Within 30 days of the date of these orders, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge along the respondent's common boundary with the applicants' property so that they are no more than 50 centimetres above the common boundary fence, stepping up or down with the fence along the hedge as might be the case, and so that no parts of the trees overhang the applicants' property. 3. The respondent is to give the applicants at least 2 days' notice of the pruning in order (2) and is to remove any debris from the pruning in order (2) from the applicants' property should the applicants wish. 4. Until the lilly pilly trees in the hedge along the respondent's common boundary with the applicants' property are removed, during April each year beginning April 2022, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge so that they are no more than one metre above the common boundary fence, stepping up or down with the fence along the hedge as might be the case. 5. Periodically, as they see fit, the applicants are to prune any of the lilly pillies' branches that overhang their property back to the common boundary but no further. 6. The exhibits are returned except for A, B and 1.

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: 09 November 2021

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