Scott v The Owners of Strata Plan 64730

Land and Environment Court (NSW)|2014-10-13

Background 1Approximately 13 years ago a new apartment complex known as "The Grid" was constructed in Rushcutters Bay. The common open space on the north side of the building includes a swimming pool and landscaping: a row of Honey Locust trees grows alongside the pool and Lilly Pilly hedges line the boundaries. Apartments on the north side of the building enjoy harbour views to the north. At a more oblique angle their occupants can see, and perhaps be seen from, the neighbouring apartment building to the east, known as "The Mark". The Lilly Pilly hedge along the eastern boundary provides some visual screening between lower floors of the two buildings. The hedge is currently around 4.5 metres tall, but has in the past been over 7 metres tall. It was planted in 2001. 2Mr Scott ("the applicant") has been an owner and occupier of a ground floor apartment in The Mark building since February 2008. He owns the apartment with his wife and together they live there with their young children. Their apartment is on the western side of the building, much of it adjacent to the large built form of The Grid, but parts of their apartment, including the kitchen and a small sunroom or eating area, are adjacent to The Grid's open space. A narrow access path, common property of The Mark, separates Mr Scott's apartment from the common boundary, along which a retaining wall extends north from The Grid's building. The retaining wall is approximately 1.7 metres tall. Behind the retaining wall is the Lilly Pilly hedge. 3The ground level of The Grid's open space is considerably higher than floor level of Mr Scott's apartment. The presence of the Lilly Pillies atop the retaining wall therefore blocks light to the apartment window. Mr Scott has obtained a permit to extend the window down to floor level. However he is concerned that the hedge limits their solar access and, along with occupiers of other apartments at The Mark, has tried to negotiate with owners of The Grid ("the respondent") for the trees to be maintained at a lower height. The Respondent made offers for pruning that did not satisfy Mr Scott, but nevertheless pruned the Lilly Pillies, reducing their height from around 7 metres to 4 metres. The respondent's intent seems to be to maintain them at their current height by pruning them annually to 4 metres. 4Still concerned about his lack of solar access, Mr Scott has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the "Trees Act"), seeking orders for the trees to be pruned to, and maintained at, a height of 1.2 metres.

Onsite hearing 5The onsite hearing allowed observation of the trees, Mr Scott's apartment, privacy and overlooking issues between the two properties, and other features of the site and surrounding landscape. 6The hedge is a row of 17 Lilly Pillies planted in a straight line close to the common boundary, extending from the building at The Grid to the rear boundary of that property. The trees are approximately 4.5 metres tall and are in good condition.

Submissions 7Mr Scott contends that documentation shows that an approved landscape plan for The Grid included Gardenias along the eastern boundary, to grow to a maximum height of 1.2 metres. He argues that the Lilly Pilly hedge should therefore be pruned and maintained at a height of 1.2 metres. There is some documentation that supports his statement regarding the landscape plan, but an endorsed landscape plan is unavailable. It seems that South Sydney City Council, as it was then, lost many plans when a building was damaged. Mr Scott points out that changes that were made to the design of The Grid, such as reducing its northern extent along the eastern boundary and using a glass screen instead of a solid fence atop the eastern boundary's retaining wall, were for the purpose of allowing more light into dwellings at The Mark. He says the hedge's presence at its current height contradicts the purpose of Council's requirements when the Development Application was approved. 8The respondent says that reducing the hedge's height would increase overlooking issues from The Mark, affecting privacy for residents in the Grid's north-facing apartments.

The height of the hedge when the applicant moved into his apartment 9The height of the hedge in 2008 is not of jurisdictional relevance here. Mr Hazan argued that the wording of the Act at s 14A(1)(b) indicates that when enacting the legislation Parliament intended that a hedge must be less than 2.5 metres in height when an applicant purchases a neighbouring property. The Act states: 14A(1) This Part only applies to groups of 2 or more trees that: (b) rise to a height of at least 2.5 metres (above existing ground level). According to Mr Hazan, this means the trees must be less than 2.5 metres when an applicant purchases a property, and must rise to more than that height while the applicant owns the property. I find nothing here, nor in the Second Reading Speech of the NSW Legislative Council, referred to by Mr Hazan, supporting his argument. The Court has consistently found that the jurisdictional requirement for the trees to be 2.5 metres or taller applies at the time of the hearing. 10However, when making orders, the Court must consider what conditions existed when the applicant purchased their property. This is explained by Fakes C in McDougall v Philip [2011] NSWLEC 1280 at paragraphs (21) to (24). 11Ms Engelen, who was involved in The Grid's design and resides there, says the hedge was around 4 metres tall in early 2008 when Mr Scott moved into his dwelling, and Mr Hazan says that photographs from the time support this. In 2010, when Mr Scott raised the issue with the respondent, the hedge had grown to around 6.8 metres tall. Mr Scott concedes that the hedge may have been more than 4 metres tall when he purchased, but says that there was ample light in his dwelling.

The Court has jurisdiction 12There is no question that Part 2A of the Trees Act applies to the row of 17 Lilly Pillies: the trees are planted so as to form a hedge and are more than 2.5 metres tall (s 14A(1)). 13The applicant has made a reasonable effort to resolve his concerns, although was unable to reach agreement with the respondent regarding a suitable outcome (s 14E(1)(a)). 14The Lilly Pillies are severely obstructing sunlight to the applicant's window (s 14E(2)(a)(i)). There are other obstructions, and direct sunlight would only reach the window during the afternoon, as indicated by shadow diagrams. Nevertheless, the limited available sunlight is important to the applicant's enjoyment of his property, and its loss significantly affects this enjoyment. I am satisfied that the obstruction, to the level it is caused by the trees, is "severe". 15The only other jurisdictional test is at s 14e(2)(B): I must be satisfied that the applicant's interests in removing the obstruction outweigh any reasons there may be for not interfering with the trees. This requires consideration of the matters at s 14F of the Trees Act.

Matters to be considered 16The Court may make orders as it thinks fit to remedy, restrain or prevent a severe obstruction of sunlight (s 14D). This discretion in making orders follows from consideration of the matters at s 14F. I consider the following matters relevant. 17The Lilly Pillies are close to the boundary and to Mr Scott's dwelling. They were planted after the applicant's dwelling was built, but were there when the applicant took ownership of his dwelling. Their size and impact at that time are relevant, and are matters of contention between the parties. The trees were already 2.5 metres tall when Mr Scott purchased, but this is not a jurisdictional question as claimed by Mr Hazan. I find Ms Engelen's statements regarding the trees' height to be reasonable. She says they were 4.3 metres tall when Mr Scott purchased his property. This is supported by photographs in which the trees can be seen. The thickness of their stems is consistent with this height. The height is also consistent with the trees' age, growth rates and the height they subsequently reached: Mr Scott stated they were 6.8 metres tall in 2010 and Mr Lane stated they were 8 metres tall in May 2011. However, I also accept Mr Scott's assertion that his apartment was lighter in the past and their enjoyment of the property is affected. 18Documents presented by Mr Scott indicate that the height of trees along this boundary was an important consideration during The Grid's Development Application approval process, however there are no endorsed landscape plans that demonstrate their height was an approved condition. The City of Sydney has received a copy of the application but has made no submissions regarding this matter. I am not compelled to make orders to prune the hedge to 1.2 metres. 19The Lilly Pillies have no cultural or heritage value and make little contribution to the environment or to amenity beyond the respondent's property. 20Regarding the trees' contribution to privacy, I observed that other apartments at The Mark already have a line of sight into The Grid. Pruning the hedge may increase the number of people who can look into The Grid's apartments, but it will not result in overlooking where none exists now. Therefore I do not find that privacy or overlooking is an issue that will influence the making of any orders. 21The species is tolerant of hedge-pruning and has recently been pruned to approximately 4 metres in height. 22Shadow diagrams submitted by the applicant indicate the impact of the Lilly Pilly hedge on the applicant's window. In the absence of the Lilly Pillies, sunlight would only be available to the applicant's window for limited hours during the afternoon. However the trees create a dense screen that allows little light to pass through. They are evergreen and therefore contribute significantly to the lack of light in the applicant's apartment during winter, when available sunlight is most appreciated. 23The respondent has made several offers to prune the trees. When the parties could not reach agreement, the respondent pruned the trees to approximately 4 metres, which appears to be consistent with their height at the time the applicant purchased his property. 24The window provides light to a sunroom, or eating area, and more indirectly to the kitchen. These are both living areas likely to be used by the applicant's family during times when they would appreciate greater access to light.

Conclusions 25The hedge obstructs sunlight to the applicant's window only during afternoon hours, but the obstruction during that period is severe. This affects the applicant's enjoyment of his property, especially during winter. Pruning the hedge to 1.2 metres, as sought by the applicant, would remove much of that obstruction. However the applicant did not enjoy such solar access at the time he purchased his property: it seems likely that the hedge was at least 4 metres tall at that time. The Trees Act can assist the applicant with restoring and maintaining solar access, but it is not the purpose of the Trees Act to gain additional solar access that did not exist at the time of purchase. Maintaining the hedge at a height of 4 metres would allow the applicant greater access to light, even if some of that light is ambient rather than direct sunlight. Such pruning would have minimal impact on the respondent's privacy. 26Pruning annually just before winter would have the greatest benefit for the applicant while minimising the onus for the respondent. Orders will be made to prune the hedge slightly below 4 metres to allow for regrowth during winter. (Further regrowth during summer should be less of an issue for the applicant.)

Orders 27Therefore the Orders of the Court are: (1)The application is upheld in part. (2)Every year during the month of May, beginning 2015, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the 17 Lilly Pillies along their eastern boundary to a height of no more than 3.8 metres above ground level, measured from the base of each tree. Branches and foliage of the Lilly Pillies overhanging the respondent's eastern boundary are to be removed at the same time. (3)The works are to be done in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The works are generally to conform to the guidelines of AS4373 Pruning of Amenity Trees other than those sections that would prevent the pruning being ordered above. (5)The respondent is to give the Owners of Strata Plan 15629 and the applicant at least seven days' notice of the works. (6)The applicant is to provide any access required for the works during reasonable hours of the day.

D Galwey Acting 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: 09 December 2014

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