Sneesby v Pirie

Framework

1. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of the applicant's dwelling, or a severe obstruction of a view from the applicant's dwelling. If so satisfied, the Court must consider a range of matters such as the benefits of the trees and the privacy they provide.

Onsite hearing: observations and submissions

1. The hearing took place onsite with both parties in attendance and I bring my own arboricultural expertise to the matter. The trees, which were inspected initially, had been planted at close and regular spacings and were forming a dense wall-like screen in an uninterrupted straight row along the boundary. Their height ranged from about 3.5 to 4.3 m and the trees appeared to be growing vigorously.
2. As the hearing commenced at 1pm in late autumn, the conditions were reasonably representative of autumn, winter, and spring, when light and warmth from the sun is usually most valued. In the applicant's subsequently inspected rooms containing W1 - W5, sunlight obstruction was significant, consistent with photographs illustrating low light intensity readings from a lux meter, which were included in Exhibit B.
3. Ms Pirie resisted pruning the trees to 2.1 m and contended the obstruction of sunlight to the applicant's nominated windows was not significant as the windows were in four service rooms and one bedroom (W4). Ms Pirie emphasised the importance of the hedge for privacy, shade, aesthetics, bird habitat, and mitigation of conflict by retaining balls in her backyard.

Jurisdictional requirements

1. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
2. Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level).
3. The trees were about 4 m tall and had been planted in a line at close intervals to form a hedge. Therefore, s 14A(1) of the Trees Act is engaged.
4. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
5. Section 14B of the Trees Act is satisfied as Ms Sneesby is an owner of land and the hedge is situated on adjoining land.
6. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by Ms Sneesby provides satisfactory evidence to engage s 14E(1)(a) of the Trees Act. I am also satisfied that s 14E(1)(b) is engaged as the applicant provided evidence of service of the application and proposed orders, with notice, in accordance with s 14C of the Trees Act.

Is the obstruction of sunlight severe?

1. The next step is to assess the severity of the obstruction of sunlight from a window of the applicant's dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (2) The Court must not make an order under this Part unless it is satisfied that: (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.
3. Consistent with the findings in Voeten v Adams [2011] NSWLEC 1106, at [43]-[44], I accepted Ms Pirie's contention that the obstruction of sunlight to the window in a service room or bedroom was not as significant as obstruction of sunlight to a window in a living area. Nonetheless, because the hedge severely obstructed sunlight to all four service rooms and the bedroom, as a result of the cumulative impact, I was satisfied that the hedge caused a severe obstruction of sunlight to the applicant's windows. Consequently, s 14E(2)(a) of the Trees Act is engaged.
4. With the satisfaction of s 14E(2)(a), the Trees Act requires the Court to consider s 14E(2)(b). This states: 14E Matters of which Court must be satisfied before making an order … (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.

Section 14F considerations

1. In order to determine the balancing of interests inherent in s 14E(2)(b), consideration of relevant matters in s 14F of the Trees Act is required, as follows:
2. The row of trees was growing close to the common boundary adjacent to the applicant's dwelling and rear yard (s 14F(a)).
3. The applicant's dwelling predated the trees (s 14F(b)).
4. Section 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicant has owned or occupied the relevant land. Based on the parties' submissions, the trees were between 1.8 and 2.1 m upon the applicant's occupation and had subsequently grown to about 3.5 to 4.3 m.
5. The trees contributed to the local ecosystem and biodiversity as I noted various birds' nests that appeared currently in use during my hedge inspection (s 14F(g)).
6. In considering the impact of pruning (including the maintenance of the trees at a certain height, width or shape) on the trees, Photinia robusta are a hardy species that generally tolerate relatively regular pruning (s 14F(k)).
7. Ms Pirie valued the trees' contribution to her garden design and landscaping, shade, and particularly to privacy (s 14F(l)).
8. With respect to any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction, Ms Pirie had the hedge height pruned to about 3 m in March 2023, and Mr Sneesby occasionally pruned his side of the hedge (s 14F(n)).
9. Section s 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case. The issue of flowers and other tree debris accumulating on the applicant's roof and in gutters was a repeated submission to justify pruning the hedge below the gutters of the applicant's dwelling. Though such debris is not explicitly considered under Pt 2A of the Trees Act, it is addressed under Pt 2 of the Trees Act in consideration of damage, and it is relevant to note the Court's practice here.
10. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", Preston CJ states that this is not "damage to property on the land" within s 7 of the Act, and that: "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
11. In Robson, at [56], discussing the issue of nuisance, his Honour states that "mere encroachment is insufficient to complete a cause of action."
12. The maintenance impost from falling tree debris is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], established the tree dispute principle: "… For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
13. As a consequence of this grounds' maintenance expectation regarding leaves, fruits, seeds, twigs, bark or flowers, blowing or falling onto the roof, into gutters or onto the ground, the applicant's submissions regarding debris from the trees fails to invoke the jurisdiction of the Trees Act.

Conclusion

1. Sunlight was severely obstructed to all five windows nominated by the applicant, but because the windows were in a laundry, a toilet, two bathrooms, and a bedroom, the impact of the obstruction was deemed less significant than sunlight obstruction of a window of a living area. Nonetheless, as the hedge severely obstructed sunlight to all five of the applicant's west side dwelling windows, s 14E(2)(a) of the Trees Act was engaged.
2. Though the applicant's proposed hedge height was informed by debris from the trees blowing or falling into roof gutters, in keeping with the tree dispute principle established at [20] of Barker, such debris and associated maintenance burden do not engage the jurisdiction of the Trees Act.
3. In conducting the balancing of interests at s 14E(2)(b) of the Trees Act, it is appropriate to restrain the extent of the applicant's sunlight obstruction, at the respondent's expense. However, as a result of the significance of the hedge for the respondent's privacy and aesthetic appreciation of her yard, and the presence of various occupied birds' nests relatively high in the hedge, the height ordered for pruning and maintenance shall be higher than in the applicant's proposed orders.
4. Further, as the jurisdiction of the Trees Act does not cover obstruction of sunlight to lawns or clotheslines, orders for pruning shall be restricted to the hedge section bordering the applicant's dwelling and shall not apply to the hedge section bordering the applicant's backyard.

Orders

1. The Court orders that: 1. Within 30 days of the date of these orders, the respondent, at her expense, shall have the section of the Photinia hedge adjacent to the applicant's dwelling pruned to a height not exceeding 2.8 metres above ground level, measured from the respondent's side. 2. The pruning works in Order 1 shall be completed by an Australian Qualification Framework (AQF) level 3 arborist, landscape gardener, or horticulturist with all appropriate insurances (the contractor). 3. During May of 2025 and during May of each subsequent year, the respondent, at her expense, shall direct the contractor to undertake pruning of the hedge in accordance with Order 1. 4. The pruning works shall comply with Safework Australia, Guide to managing risks of tree trimming and removal work, 2016, and shall be undertaken during normal daytime working hours. 5. Should the contractor require access to the applicant's property to quote or undertake the works, or tidy the site, the applicant shall provide access, subject to 72 hours' notice by email. …………………… J Douglas 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: 27 August 2024

1. Section 14B of the Trees Act is satisfied as Ms Sneesby is an owner of land and the hedge is situated on adjoining land.
2. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. The contact chronology included by Ms Sneesby provides satisfactory evidence to engage s 14E(1)(a) of the Trees Act. I am also satisfied that s 14E(1)(b) is engaged as the applicant provided evidence of service of the application and proposed orders, with notice, in accordance with s 14C of the Trees Act.

1. The next step is to assess the severity of the obstruction of sunlight from a window of the applicant's dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states:

14E Matters of which Court must be satisfied before making an order

...

(2) The Court must not make an order under this Part unless it is satisfied that:

(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.

1. Consistent with the findings in Voeten v Adams [2011] NSWLEC 1106, at [43]-[44], I accepted Ms Pirie's contention that the obstruction of sunlight to the window in a service room or bedroom was not as significant as obstruction of sunlight to a window in a living area. Nonetheless, because the hedge severely obstructed sunlight to all four service rooms and the bedroom, as a result of the cumulative impact, I was satisfied that the hedge caused a severe obstruction of sunlight to the applicant's windows. Consequently, s 14E(2)(a) of the Trees Act is engaged.
2. With the satisfaction of s 14E(2)(a), the Trees Act requires the Court to consider s 14E(2)(b). This states:

14E Matters of which Court must be satisfied before making an order

...

(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.

1. In order to determine the balancing of interests inherent in s 14E(2)(b), consideration of relevant matters in s 14F of the Trees Act is required, as follows:
2. The row of trees was growing close to the common boundary adjacent to the applicant's dwelling and rear yard (s 14F(a)).
3. The applicant's dwelling predated the trees (s 14F(b)).
4. Section 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicant has owned or occupied the relevant land. Based on the parties' submissions, the trees were between 1.8 and 2.1 m upon the applicant's occupation and had subsequently grown to about 3.5 to 4.3 m.
5. The trees contributed to the local ecosystem and biodiversity as I noted various birds' nests that appeared currently in use during my hedge inspection (s 14F(g)).
6. In considering the impact of pruning (including the maintenance of the trees at a certain height, width or shape) on the trees, Photinia robusta are a hardy species that generally tolerate relatively regular pruning (s 14F(k)).
7. Ms Pirie valued the trees' contribution to her garden design and landscaping, shade, and particularly to privacy (s 14F(l)).
8. With respect to any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction, Ms Pirie had the hedge height pruned to about 3 m in March 2023, and Mr Sneesby occasionally pruned his side of the hedge (s 14F(n)).
9. Section s 14F(s) considers such other matters as the Court considers relevant in the circumstances of the case. The issue of flowers and other tree debris accumulating on the applicant's roof and in gutters was a repeated submission to justify pruning the hedge below the gutters of the applicant's dwelling. Though such debris is not explicitly considered under Pt 2A of the Trees Act, it is addressed under Pt 2 of the Trees Act in consideration of damage, and it is relevant to note the Court's practice here.
10. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", Preston CJ states that this is not "damage to property on the land" within s 7 of the Act, and that:

"leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."

1. In Robson, at [56], discussing the issue of nuisance, his Honour states that "mere encroachment is insufficient to complete a cause of action."
2. The maintenance impost from falling tree debris is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], established the tree dispute principle:

"...

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."

1. As a consequence of this grounds' maintenance expectation regarding leaves, fruits, seeds, twigs, bark or flowers, blowing or falling onto the roof, into gutters or onto the ground, the applicant's submissions regarding debris from the trees fails to invoke the jurisdiction of the Trees Act.

1. Sunlight was severely obstructed to all five windows nominated by the applicant, but because the windows were in a laundry, a toilet, two bathrooms, and a bedroom, the impact of the obstruction was deemed less significant than sunlight obstruction of a window of a living area. Nonetheless, as the hedge severely obstructed sunlight to all five of the applicant's west side dwelling windows, s 14E(2)(a) of the Trees Act was engaged.
2. Though the applicant's proposed hedge height was informed by debris from the trees blowing or falling into roof gutters, in keeping with the tree dispute principle established at [20] of Barker, such debris and associated maintenance burden do not engage the jurisdiction of the Trees Act.
3. In conducting the balancing of interests at s 14E(2)(b) of the Trees Act, it is appropriate to restrain the extent of the applicant's sunlight obstruction, at the respondent's expense. However, as a result of the significance of the hedge for the respondent's privacy and aesthetic appreciation of her yard, and the presence of various occupied birds' nests relatively high in the hedge, the height ordered for pruning and maintenance shall be higher than in the applicant's proposed orders.
4. Further, as the jurisdiction of the Trees Act does not cover obstruction of sunlight to lawns or clotheslines, orders for pruning shall be restricted to the hedge section bordering the applicant's dwelling and shall not apply to the hedge section bordering the applicant's backyard.

(1) Within 30 days of the date of these orders, the respondent, at her expense, shall have the section of the Photinia hedge adjacent to the applicant's dwelling pruned to a height not exceeding 2.8 metres above ground level, measured from the respondent's side.

(2) The pruning works in Order 1 shall be completed by an Australian Qualification Framework (AQF) level 3 arborist, landscape gardener, or horticulturist with all appropriate insurances (the contractor).

(3) During May of 2025 and during May of each subsequent year, the respondent, at her expense, shall direct the contractor to undertake pruning of the hedge in accordance with Order 1.

(4) The pruning works shall comply with Safework Australia, Guide to managing risks of tree trimming and removal work, 2016, and shall be undertaken during normal daytime working hours.

(5) Should the contractor require access to the applicant's property to quote or undertake the works, or tidy the site, the applicant shall provide access, subject to 72 hours' notice by email.