Saidi v Farajpour

Land and Environment Court (NSW)|2021-10-20|Before: Centre J

Background to the application

COMMISSIONER: Samir and Kate Saidi ('the Applicants') purchased their Frenchs Forest property in 2013. Trees were growing on the neighbouring property to their north belonging to Ladan and Mehrad Farajpour ('the Respondents'). The Saidis have tried for some time to get the Farajpours to prune their trees to restore their access to sunlight, which they say the trees grew to obstruct. The Farajpours have been unwilling to prune their trees. The Saidis applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for eight cypress trees and three brush cherries to be removed and replaced with hedge plants to be maintained at a height of 2.5 metres. Alternatively, they seek orders to prune and maintain the existing trees at a height of 2.5 metres. They also seek the costs of their application.

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 Saidis submitted that from 2015 they had an informal agreement with the Farajpours that the hedge would be maintained below a certain height, although the Farajpours denied this. The Farajpours refused the Saidis' 2019 invitation to mediation via the Community Justice Centre. In 2020, the Saidis sent a letter via a solicitor to the Farajpours offering to pay for pruning or removal of the hedge. They were then unsuccessful in again trying to arrange mediation. On this history, I am satisfied that the Saidis made reasonable effort to reach some agreement with the Farajpours prior to making their application.

The trees are planted so as to form a hedge

The trees are on the Farajpours' side of the Saidis' northern rear boundary. The common boundary here is the Farajpours' southern side boundary, which extends further eastward behind the property to the Saidis' east. The Farajpours' trees planted along this boundary also extend further eastward.
This continuous row of trees is made up of two species, identified by arborist Andrew Scales (report in Exhibit B) as Himalayan Cypress (Cupressus torulosa) and Brush Cherry (Syzygium australe). At the western end of the row are eight cypress trees (trees T1-T8 in the application); the first three brush cherries (T9-T11) then reach the eastern end of the parties' common boundary, with other brush cherries continuing the row further east. Despite the change in species, the trees form a continuous dense screen along the Farajpours' southern boundary. Only the eight cypress and first three brush cherries are subjects of the Saidis' application, being the 11 trees growing along their common boundary and affecting the Saidis' property. The trees are well over 2.5 metres tall: Mr Scales estimated the cypress were 9 metres tall and the brush cherries 7 metres tall. I am satisfied that all 11 trees in the application are planted so as to form a hedge and Pt 2A of the Trees Act applies to these trees.

The trees severely obstruct sunlight

The parties dispute the extent to which the trees obstruct sunlight to the Saidis' property.

The Applicants' position

The Saidis provided shadow diagrams and photographs including aerial photographs. They submitted that trees in the hedge obstruct direct sunlight to their north-facing living room windows (W1 and W2) for up to four hours per day during May to August. The shadow diagrams of JAH Design Services support this. The Saidis submitted that this takes sunshine from their dwelling when they most need it. They cited the Court's decision in Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462, saying their own loss of sunshine is more severe than the obstruction described in that matter.

The Respondents' position

The Farajpours submitted that the trees might not be as tall as the Saidis' claimed. They opined that shadows represented in the Saidis' shadow diagrams and seen in photographs might not all be from trees in their hedge, but might also come from other trees.

Findings

Firstly, I find the JAH Design Services shadow diagrams provided by the Saidis to be accurate. I have compared them with aerial photographs provided by the Farajpours. For instance, the 16 June 2020 aerial photograph (p 36 of Exhibit 1) shows the trees' shadows extending directly southwards across the Saidis' garden and covering the northernmost part of the Saidis' roof. No other trees are north of the Saidis' garden, so the shadows are from trees that are the subject of the application. Shadows in this photograph spread slightly west of south, so it was taken shortly before midday. The shadow diagram representing 11:00 am on 21 June (p 10 of the appendix to Mr Saidi's affidavit, Exhibit C) shows shadows reaching the same parts of the Saidis' roof as shown in the aerial image. The Saidis' photographs showing the back wall of their dwelling in June further verify the shadow diagrams.
Shadow diagrams show the trees' shadows cover these north-facing windows from before 9:00 am until after midday. The loss of sunlight significantly affects the Applicants' enjoyment of their living areas. The loss is more than mildly annoying. Roseth SC recommended the use of qualitative terminology used to describe degrees of view obstruction in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 at [28]: "negligible, minor, moderate, severe or devastating". The loss of all winter morning sunlight might be less than devastating, but is more than moderate. I find the trees severely obstruct sunlight to the Saidis' windows.

Reasons against making orders

Before making any orders, the Court must be satisfied that the Applicants' interest in removing the obstruction of sunlight outweighs the reasons to avoid interfering with the trees (s 14E(2)(b) of the Trees Act). This usually requires the weighing up of the Applicants' interests and the Respondents' interests. To assist, s 14F sets out matters that must be considered by the Court. I discuss those that are relevant below.

Location of the hedge

The Farajpours submitted that the trees are planted in a row approximately 3 metres from the common boundary. Aerial photographs show the trees' foliage reaches to and across the common boundary. The trees form a dense screen up to 10 metres tall or more along the boundary, approximately 10 metres to the north of the Saidis' dwelling. The Saidis' land is lower than the Farajpours', increasing the relative height of the trees from the Saidis' land.

When the hedge grew

The Farajpours submitted that they planted the trees in 2002. The Saidis bought their property in 2013. The Saidis submitted that the trees did not obstruct sunlight to their dwelling in 2013. They estimated that the trees were 2.5 metres tall in 2013. JAH Design Services' prepared shadow diagrams representing shadows from the trees if they were 3 metres tall - they show no sunlight obstruction to the Saidis' dwelling. The Farajpours submitted that the trees had been growing here for 11 years in 2013 and were more than 2.5 metres tall, as could be seen in real estate advertising material in 2013. The Farajpours also provided aerial images taken at various times between 2009 to 2021. They said that these images show that the current tree height and sunlight obstruction are not dissimilar to conditions that existed in and before 2013.
The trees' heights in 2013 and the extent of sunlight obstruction at that time are relevant matters because the remedies available under Pt 2A of the Trees Act are limited to Applicants who have lost access to sunlight or views during the period of their property ownership. At s 14F of the Trees Act, the Court must consider, among other matters: (a) … (b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to), (c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land, …
In McDougall v Philip [2011] NSWLEC 1280 ('McDougall'), Fakes C wrote at [22]-[24] (with my emphasis in bold): "22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006 " undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force - see http://www.lawlink.nsw.gov.au/lawlink/lec/ll_lec.nsf/pages/LEC_tree_disputes_information] a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling. 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. c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title. f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction. 23 The discussion relating to Recommendation 9 [page 35] states in part that: The Court would only have the power to hear matters regarding: ....cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase. 24 The amended Act incorporates all of the recommendations made in the review."
The Saidis provided two survey plans, the earlier one dated December 2020 and the later one dated August 2021. Based on spot levels for ground and tree tops on those plans, the Saidis calculated the tallest tree grew in height from 7.7 metres to 10.92 metres between the survey dates. They relied on this to show how quickly the trees grow. The Farajpours argued that the trees would not grow more than 3 metres in a period of eight months. They are correct. The surveyor's notation on these plans includes: "Tree located by remote methods; position and heights are approximate only."
The survey plans cannot be relied upon to determine the trees' heights or their growth rates. And while the Applicants' shadow diagrams include representation of the trees' sunlight obstruction if they were 3 metres tall, their assumption that this represents the situation in 2013 is flawed, as property advertising photographs show the trees were greater than 3 metres tall in 2013.
Of greater use to the Court are the Respondents' historic aerial photographs. They were taken during various seasons over the period of 2009 to 2021, so not all can be relied upon for direct comparison, however several are of particular utility.

The aerial image of 15 June 2012 (p 19, Exhibit 1) shows the situation around mid-winter. Shadows fall almost directly to the south, so the image was taken close to midday. In 2012, a row of pencil pines was still present on the Applicants' side of the common boundary - they have been removed since. Those trees can also be seen in the 2013 promotional photographs and were taller then than trees in the Respondents' hedge. In the 2012 aerial image, the pencil pines' linear shadows can be seen on the Applicants' roof, while the solid block of shadow from the Respondents' hedge ends part-way across the Applicants' garden. In mid-winter of 2012, the Respondents' hedge did not obstruct sunlight to the Applicants' windows.
The aerial image of 28 April 2013 (p 22) shows the hedge's shadow still not reaching the Applicants' dwelling, with the pencil pines' shadows only on the northern-most edge of the roof. This image, also captured close to midday, is closer to the equinox than the winter solstice.
The aerial image of 4 July 2015 (p 29) also taken around midday (shadows fall almost directly to the south), not too distant in time from the winter solstice, shows the hedge's shadow covering the Applicants' garden to their dwelling but not falling on their roof. It seems that in winter of 2015, sunlight may have reached their north-facing windows to some extent, most likely the windows' lower parts near the ground.
The aerial image of 2 July 2016 (p 32), also taken around midday close to mid-winter, again shows the hedge's shadow across the Applicants' garden but not on their roof. Some sunlight can be seen on the ground just to the north of their dwelling. It seems that their windows were only partly shaded in 2016.
The aerial image of 16 June 2020 (p 36), also taken around midday near the winter solstice, shows the hedge's shadow covering the Applicants' garden and now reaching their roof. The north-facing windows would now be almost completely shaded, which the Applicants' photographs (p 15 onwards in the appendix to Exhibit B) show to be the case.

It is apparent from the aerial images that trees in the Farajpours' hedge were significantly shorter in 2013 than they were in 2020. It is also apparent from the aerial images that the hedge that now severely obstructs winter sunlight to the Saidis' windows, did not do so in 2013.
Mr Farajpour estimated the trees were 6 metres tall in 2013 (par 12 of his affidavit, Exhibit 1), while the Saidis estimated they were 2.5 metres tall. Shadows in 2013 aerial images extend slightly further than those shown in the shadow diagrams representing 3-metre tall trees, so the trees were apparently slightly more than 3 metres tall. I estimate they were approximately 4-5 metres tall. Pruning the trees to this height would restore mid-winter sunlight to the Saidis' dwelling to roughly the level of sunlight access they enjoyed when they came here.

Council consent

Information on Northern Beaches Council's website indicates that no permit is required for pruning or removing cypress. A permit may be required to prune or remove the brush cherries unless they are less than 2 metres from the Farajpours' dwelling.

Conditions of development consent

The Saidis submitted that the Farajpours' approved landscape plan required lilly pillies (such as the brush cherries) to be planted along this boundary, not cypress. The Farajpours stated that they changed part of the hedge to cypress after speaking with other neighbours who had cypress trees. The Farajpours submitted that a council officer inspected the site after landscaping was completed and wrote that it was "generally in accordance with approval". The council officer's file note included mention of screening for privacy. I note that the approved landscape plan specified a "native mix" planting along this boundary. The plan did not specify a maximum height but shows an indicative tree approximately 2.5 metres tall.

Benefits of the trees

The trees contribute some ecosystem services - cooling and shading. They provide some limited habitat, although none was specifically identified. They do not contribute greatly to public amenity. They do not have social, cultural or historic value.
The trees were clearly planted to provide some privacy screening between these two properties. The Farajpours' land is higher than the Saidis' land, so there is potential for overlooking into the Saidis' garden and the back of their dwelling. The Saidis submitted that the trees have been left to grow tall rather than being maintained as a shorter screening hedge; as a result, the lower stems are now relatively bare and the trees no longer prevent overlooking from the Farajpours' ground level. The Saidis' photographs support this. Mr Saidi submitted that the Farajpours now use the hedge principally for obscuring the sight of high-voltage transmission lines to the south of the Saidis' property, requiring a greater tree height than screening for privacy. The Farajpours acknowledged that they benefit from the trees' screening of the transmission lines. Certainly the height and form of the trees provides screening of those transmission lines from the Farajpours' property but allows overlooking into the Saidis' property.

Other causes of sunlight obstruction

The Saidis' back garden, being significantly lower than the Farajpours' land, is partly shaded at its northern end by retaining walls near the boundary and the boundary fence itself. However, these features do not obstruct sunlight to the Saidis' windows.

Actions taken by the parties

The Saidis have tried to reach an agreeable outcome with the Farajpours, as described earlier.
Mr Farajpour has recently tried pruning some of the trees. The task of pruning such a tall hedge is beyond the average homeowner, as Mr Farajpour discovered.

Nature of the obstruction

The cypress and brush cherries are all evergreen. They form a dense screen above the boundary, obstructing nearly all mid-winter sunlight to the Saidis' north-facing living room windows throughout the morning and into the afternoon.

Impact of pruning the trees

Pruning the cypress trees to a height of 2.5 metres, as proposed by the Saidis, or even to 4-5 metres as I find they were in 2013, would severely impact these trees. Unlike the brush cherries, the cypress would not respond well to pruning: their lower stems would remain bare and their tops would be woody and unattractive. As the Farajpours submitted, this would not be a desirable outcome. Mr Scales also found pruning the cypress to such a degree would be unacceptable.
Nevertheless, in my mind, the benefits to be gained by the Saidis outweigh the potential amenity loss to the Farajpours that would result from interfering with the trees. However, because of the amenity impacts that would result from pruning the cypress, I prefer the Saidis' alternative proposal of removing these trees and replacing them with trees that are maintained to form a shorter hedge. The amenity loss would be greater in the short term, but the final outcome would be better than either alternative: leaving the cypress as they are or pruning them to 4-5 metres. The unintended result of this would be that the Saidis would temporarily have even greater access to sunlight than they had in 2013, but the nature of the orders will aim to restore the situation to roughly the state of affairs they came to in 2013, using a more suitable species of hedging tree. Replanting with brush cherries would provide continuity with the remainder of the hedge to the east and would be consistent with the Farajpours' approved landscape plan.
Unlike the cypress, the brush cherries should respond well to pruning. They are already shorter than the cypress trees. Reducing their height and then maintaining them regularly should result in an effective privacy screen along the boundary. Mr Scales suggested thinning them rather than reducing them in height, but in my mind this would not restore sunlight access sufficiently and would also be difficult to specify in a way that would avoid future disputes. Therefore, orders will be made for pruning to shorten trees T9-T11 rather than thinning or removing them.
The pruned brush cherries and the newly planted brush cherries will then be maintained by regular pruning to a height of 4 metres. Allowing for some regrowth between pruning events, this would result in a hedge within a height range of 4-5 metres, that being my estimation of the trees' height in 2013.
If the task of pruning this hedge is challenging from within the Respondents' land, maintaining the hedge's southern face would be even more challenging from within the Applicants' lower land. For this reason, orders for pruning will include maintenance of the hedge's southern face.

Payment for the works; costs

The trees belong to the Respondents; the Applicants have not contributed to the issues. As is usual in such matters, the Respondents will pay for the works ordered below.
Commissioners of the Court do not have the power to make an order for costs. Should they wish, the Applicants would need to file a Notice of Motion for costs to be heard by the Registrar or a Judge of the Court. For their benefit, I note here that costs in tree disputes typically remain with the parties incurring those costs. The Saidis submitted that their application costs could have been avoided if the Farajpours attended mediation, but there is no certainty that mediation would have resulted in an agreement to prune or remove any trees.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the orders below. 2. By 31 March 2022, the Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with appropriate insurances to: 1. remove all cypress trees along their side of the common boundary shared with the Applicants (8 trees [T1-T8] are shown in the application but if more are present they are all to be removed) and grind out their stumps; and 2. to prune the three westernmost brush cherries (T9-T11 in the application) to reduce their height to no more than 4 metres above ground level measured from the base of each tree (they can prune them to a lower height if they wish) and to prune their southern sides so that no branches or foliage extend southward beyond the southern boundary. 1. By 30 April 2022, the Respondents, or their horticultural contractors, are to plant eight brush cherries where trees T1-T8 were located. The trees are to be at least 1.5 metres tall at the time of planting. 2. Each year in March, beginning March 2023, the Respondents are to engage and pay for a suitably qualified and experienced arborist or horticultural contractor (minimum AQF level 3) with appropriate insurances to prune the three westernmost brush cherries (T9-T11 in the application) and the eight new brush cherries (see order 3) to reduce their height to no more than 4 metres above ground level measured from the base of each tree (they can prune them to a lower height if they wish) and to prune their southern sides so that no branches or foliage extend southward beyond the southern boundary. 3. All tree pruning and removal works ordered above are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 4. The Respondents are to give the Applicants 7 days' notice of the tree removal and pruning in order 2 and of each pruning event in order 4. 5. The Applicants are to allow any access required by the Respondents' contractors for the purposes of completing and cleaning up the works in orders 2 and 4.

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: 16 February 2022

At a glance

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Judgment (21 paragraphs)

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Cases Cited (4)