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[2013] NSWLEC 1149
Land and Environment Court (NSW)
2013-08-13
Mr J, Mrs J
Original judgment source is linked above.
Judgment 1COMMISSIONER: This matter concerns four xCupressocyparis leylandii (Leyland Cypress) trees planted at the rear of a property in Mosman. 2The applicants have applied under s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders to be made requiring the pruning and subsequent maintenance of the trees to an appropriate height and width. 3During the hearing, in an attempt to resolve the matter, the parties agreed to discuss some options. The parties subsequently proposed consent orders for the removal and replacement of the trees at the respondents' expense. 4Before the Court can make the orders sought by the parties, the Court's jurisdiction to do so must be engaged.
Part 2A application 5Dealing first with the Part 2A application. The applicants contend that the four Leyland Cypress trees severely obstruct sunlight to windows of their dwelling. The windows are north and west facing windows of the kitchen/ living area at the rear of the dwelling. 6In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied. 7The first of these tests is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge. If this is the case, s 14A(1)(b) requires the trees to be at least 2.5m tall. 8The trees are planted along the respondents' rear southern boundary fence. The respondents have owned their property for 17 years and they state that the trees were quite mature when they purchased the property. 9While the person who planted the trees could not be questioned as to their intent, I am satisfied that the linear arrangement, spacings and species are consistent with the trees being planted so as to form a hedge. At the hearing, the trees were estimated to range in height from about 10m to 13m. Therefore, s 14A(1) is satisfied. 10The next test is found in s 14E(2). This states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 11The applicants included professionally prepared shadow diagrams in their application claim form. The diagrams show the shadows cast by the trees and other structures at the winter solstice (21 June). 12The height of the trees is based on a survey prepared on 5 December 2011. With the exception of the elevated north-facing window, the diagrams show that the trees obstruct most of the sunlight that could otherwise be received in the absence of the trees. 13Therefore, I find that s 14E(2)(a)(i) is satisfied. Section 14E2(b) requires consideration of the discretionary matters in s 14F. The relevant matters are discussed below. 14The trees are located on adjoining land and are in close proximity to the dividing fence and relatively close to the applicants' property. The trees were present when the applicants purchased their dwelling about six years ago. The parties dispute the amount by which they have grown in that time. The respondents included photographs taken in 2004 that show the trees were likely to have been about 6m tall. The applicants contend that the trees have increased in their spread and have become denser. The respondents consider that the trees have grown perhaps 3m in the period since the applicants purchased their property. 15While no details were provided, the parties believe that Mosman Council's Tree Preservation Order is less restrictive in regards to Leyland Cypress but that permission may be required given the height of the trees. However, if the Court's jurisdiction to make the orders agreed by the parties is engaged, council permission to remove the trees is not required. 16The trees provide a backdrop to the respondents' property however they stated that they were not wedded to their retention but were unable to afford their removal. The trees have little if any intrinsic value to public amenity. 17In regards to the impacts of pruning, the respondents suggested a pruned height of 6m as a means of achieving a balance. Neither party obtained any independent arboricultural opinion on appropriate pruning options. With the expertise I bring to the Court I consider that pruning to this point would have a detrimental impact on the health and appearance of the trees. The trees each comprise several stems and the diameter of the trunks at this height is quite substantial. The form of the trees is such that reduction pruning in accordance with AS4373:2007 Pruning of Amenity Trees and subsequent hedging of remaining foliage would be difficult to achieve. In my view, the trees are now too large to satisfactorily reduce and maintain them and therefore the proposed consent orders for tree removal are appropriate in the circumstances. 18While the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) was not to provide an applicant with more sunlight or views than were available to them when a property was purchased (see discussion in McDougall v Philip [2011] NSWLEC 1280 at [20] - [25]), the practical outcome of the Court's orders may have this effect. So it is in this matter. While I am certain that the applicants did not have unobstructed sunlight when they purchased their property, the practical difficulties of pruning and maintaining the trees are such that removal is the most sensible option. 19However, given the visual impact the removal of the trees will have on the respondents' property, the parties agreed that the trees should be replaced with six advanced specimens of Camellia sasanqua. These trees will provide an attractive screen but will not reach a height that is likely to severely obstruct sunlight to the applicants' dwelling.
Part 2 Application 20While the consent orders for the removal of the trees renders this element of the application somewhat redundant, the matters raised by the applicants should be considered. 21The key jurisdictional test in Part 2 is found in s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that any of the trees about which the application is made, has caused, is causing, or could in the near future cause damage to the applicants' property or could cause injury to any person. 22The applicants make the application with respect to damage, not injury. In essence, the applicants contend that:
Orders 32After considering the matter, I am satisfied that the Court's jurisdiction to make orders under s 14D is engaged. Therefore by consent, the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders the applicants are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove the four Leyland Cypress trees at the rear of 6 Vista Street Mosman. The stumps are to be ground to a depth of at least 300mm. All cut material is to be removed off site and the garden bed made good and level. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The respondents are to provide all necessary access on reasonable notice for the purpose of quoting. (5)The applicants or their arborist are to provide the respondents with at least two working days notice of the commencement of the works in order (2). The respondents are to provide all reasonable access for these works to be carried out in a safe and efficient manner. (6)Within 60 days of the date of these orders, the respondents are to purchase and plant up to 6 advanced specimens of Camellia sasanqua to replace the Leyland Cypresses otherwise order (7) lapses. (7)The applicants are to reimburse the respondents the cost of the purchase of the plants in order (6) up to a maximum total sum of $1200.00 within 21 days of the receipt of a tax invoice for the plants.
Judy Fakes 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: 14 August 2013
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