Stocker v Robbins

The trees form a hedge

1. The plan filed by Mr Stocker with the application shows 15 trees on the respondents' property along their common boundary (the respondents' western boundary) and a further three trees continuing the hedge along the respondents' northern boundary. The 18 trees, Elaeocarpus eumundi (Eumundi Quandong) according to the arboricultural report filed by the respondents, have been planted in a straight row along each boundary, at regular spacings, forming a screen along these boundaries. They are up to 8 or 9 metres tall. I am satisfied that the trees form a hedge reaching a height greater than 2.5 metres.

The applicant made reasonable effort

1. According to Mr Stocker, he first discussed the issue with Mr Johnston in late 2018. The history of text messages, emails and other correspondence since early 2019 shows that Mr Stocker has made repeated attempts to persuade the respondents to prune the hedge.
2. Mr Stocker's solicitor wrote to Mr Johnston on 8 October 2019 restating the issues, explaining the possible avenue of applying to the Court, and expressing a preference for resolving the issue amicably without the Court's intervention.
3. Mr Stocker then applied to the Court in March 2020.

The trees do not severely obstruct sunlight to the applicant's windows

1. Mr Stocker's dwelling is upslope from the respondents, with the rear of the dwelling facing east, looking across the respondents' property and the coastal hinterland to the more distant Pacific Ocean and its eastern horizon. The dwelling has two levels, the upper with a rear deck facing east. Mr Stocker claims the trees obstruct sunlight to the east-facing windows of his dwelling's lower level. He described in his application how the trees obstruct sunlight to the living room, two bedrooms and a bathroom on this lower level, from sunrise until 9:00 am in winter, and until 8:00 am in summer. Photographs taken from within these rooms (within Exhibit B) show the trees obstructing the early morning sun behind them.
2. The respondents referred to photos (within Exhibit 3) taken at 7:50 am in April 2020 showing the straight line of the shadow from the applicant's rear deck being cast on the upper parts of the windows beneath. Shade from the trees is visible on parts of the lower halves of the windows. Half an hour earlier, it is likely that there would be little shading from the applicant's deck, and greater shading from the respondents' trees. Half an hour after the photo was taken, it is likely that the deck would shade most of these lower-level windows. This aligns roughly with Mr Stocker's description of the times during which the trees might obstruct sunlight. His depiction of this situation is unexaggerated.
3. Citing Johnston v Arndell [2011] NSWLEC 1212 at [30], the respondents argued that general planning controls require living room windows to receive at least three hours of sunlight only between the hours of 9:00 am and 3:00 pm on the winter solstice. Because the sunlight lost is before 9:00 am it should not be considered significant.
4. The guidelines referred to above assist when designing buildings. They do not apply to vegetation. There is no requirement under the Trees Act to consider them. They might be useful, but they are not determinative. Other causes of sunlight obstruction beyond Mr Stocker's control might place a greater importance on the remaining sunlight access, at whatever time of the day that might be. But in this case the primary cause of sunlight obstruction to these downstairs windows comes from the deck above, an element within Mr Stocker's control during the design of his dwelling. The additional contribution of the hedge does not meet the high bar set by the word 'severe'.

The trees severely obstruct views from the applicant's dwelling

1. From Mr Stocker's rear deck on the upper level, distant views to the Pacific Ocean are broadly available across the treed hinterland. These views are also available from within the living rooms on this level. Experience shows that water views, when available, are often the more highly valued parts of an overall view. Mr Stocker expressed the significance of the water view and his desire to retain that view.
2. Trees within the hedge have grown up into the view, so that the tops of several trees now obstruct parts of the water view. Mr Stocker's photos taken from the deck and from within the living room (included in Exhibit B) show the upper sections of several trees in the hedge obstructing water views, leaving limited sections of the water view available in the gaps between the trees. 'Photo 2' (page 9) of Jan Allen's arboricultural report (Exhibit 5), taken from a standing position on the deck, also clearly shows the impact of the trees on water and landscape views. The trees are relatively close to Mr Stocker's dwelling. Their obstruction of his views is already substantial, such that I find it could be described as 'severe'. In Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140, Senior Commissioner Roseth found it useful (at [28]) "…to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating." The impact of the hedge on Mr Stocker's view is already more than 'moderate'. With further tree growth the upper part of the hedge will become a dense screen, as its lower section is already, and it will obstruct all land and water views to the east, at which time the view loss might be 'devastating'. At present, it is severe.

Should orders be made to address the view obstruction?

1. Having found a severe obstruction of views, I can make orders if the applicant's interests in remedying the obstruction outweigh reasons against interfering with the trees (s 14E(2)(b) of the Trees Act). Relevant matters that must be considered are included at s 14F.

The location of the trees

1. The trees are planted within the respondents' property, along and close to the common boundary. This has several ramifications. When Mr Stocker moved into his property, there was apparently no fence along this common boundary. The first arboricultural report obtained by the respondents from David Gunter of TPZ Project Arborists, dated February 2019, noted holes had been dug close to ("within 300 mm of") the trees. They appear to be holes for fence posts along the common boundary. Some root damage occurred. The holes were not dug by the respondents. The respondents told the applicant to avoid digging near the trees and to avoid cutting branches. There is now a fence along the common boundary. This required post holes close to the trees, and branches to be pruned, as the fence is very close to the trees. Mr Stocker's requests to prune the trees have been met with a request that he not interfere with their roots or branches. The respondents' trees form what is, in effect, a boundary hedge that benefits them. Being planted on their own property, it appears that the respondents expect to retain control over the hedge, limiting their neighbour's ability to have any control on the hedge's impacts to his property.

The trees were planted before construction of the applicant's building

1. The trees were planted in 2013. Mr Stocker purchased his property in 2017. His dwelling was constructed during 2018 and he occupied it from November 2018.

Height of the trees when the applicant owned or occupied his dwelling

1. Mr Stocker purchased his vacant land in January 2017. He obtained development approval for his dwelling around December 2017. Construction of his dwelling began around March 2018 and he occupied the dwelling in November 2018.
2. Mr Stocker provided photographs showing the hedge at different times. In a photo that, according to Mr Stocker, was taken in December 2016 ('Photo 1', Exhibit B), the tops of the trees are below the height of the respondents' roof and would not obstruct views from the applicant's land. In December 2017 ('Photo 2') the trees appear to be reaching the height of the respondents' roof and would not obstruct views from the applicant's land. Photographs taken in 2019 from the applicant's dwelling ('Photo 3' and 'Photo 4') show the trees to be well above the respondents' roof height.
3. Mr Gunter, in the respondents' first report on the trees (February 2019), described them (on page 4) as having "…an average approximate height of 6-8 metres." In the respondents' second report on the trees (June 2020) Ms Allen, described them (on page 4) as having "… an average approximate height of 4.5-8.5 metres." Both descriptions seem to be giving the range of tree heights, rather than an average. By the time of the second report, one tree had been removed and replaced with a shorter (4.5 m) tree. Jan Allen, author of the second report, concluded that the trees had grown 300-600 mm in height between the two reports. Ms Allen also noted on page 5 that the tree heights "… were not accurately measured…" and "… are not definitive."
4. The applicant submitted that the trees are now up to almost 9 metres tall. The top of the balustrade on his deck is 5.2 metres above ground level. The trees are downslope so that, he says, they are approximately 2 metres below ground level beneath his deck; and the tops of the tallest trees are some 1.5 metres above his balustrade. This roughly corresponds with Ms Allen's maximum height of 8.5 metres.
5. It is reasonable to consider the trees' height at the time Mr Stocker obtained development approval. The design of his dwelling considered the site conditions at the time. He did not delay construction for any significant period, but was living in his dwelling less than 12 months later. In Mayes v Keene [2016] NSWLEC 1604 the applicant purchased a property in 1991, gained consent for subdividing the lot in 2012, gained further consent for a new dwelling in 2015, with the dwelling completed in 2016. Acting Commissioner Fakes found at [13]-[14] that, even though the applicant owned the land in 1991 the dwelling did not exist then. Acting Commissioner Fakes considered the extent of view obstruction at the time the dwelling was constructed to be the relevant starting point for comparison. In my opinion, the obstruction at the time of obtaining development consent is also relevant, providing that there is no significant pause before the dwelling is constructed. At the time of obtaining consent, an applicant has taken existing site conditions into account in designing the dwelling, and the relevant authority has approved the design as appropriate to the site and its conditions.
6. One cannot be certain of the trees' height in December 2017, but at the time of the earlier photo taken in 2016 the trees were not large. If they were planted in 2013, they were not established trees at the time of planting. It seems likely that in the seven years since they were planted, they have increased in height by up to seven metres, or one metre each year. If their annual growth was uniform, the taller trees would have been approximately 5-6 metres tall in late 2017.

Consent would not be required

1. It appears likely that pruning the trees would fall under the exemption for 'Clearing and pruning for garden maintenance' in the Tweed Development Control Plan 2008 - Section A16, although no definitive evidence of this was adduced.

Benefits and value of the trees

1. Trees in the hedge are a native species. They provide some environmental value and contribute some ecosystem services. They would continue to do this, albeit at a slightly reduced contribution, if maintained at a smaller size. The trees contribute to the respondents' garden landscape, but do not contribute in any significant way to public amenity. They do not have historic, cultural, social or scientific value. There is no evidence that they have any impact on soil stability, the water table, or other natural features of the land.

The impact pruning would have on the trees

1. Elaeocarpus eumundi is suited to being maintained as a hedge. Although Ms Allen noted potential adverse impacts of pruning the trees, on page 6 of her report she concluded that: "• Pruning to a height below the first floor level would likely unsustainable for the trees. • Maintaining a tree height between the floor level and top of balustrade would be a considerable impost on tree longevity and aesthetics but would be sustainable for a moderate tree lifespan if judiciously implemented and managed." I concur that the trees could be maintained at a height between the applicant's second floor level and the deck's balustrade. According to Mr Stocker's measurements this would correspond to a tree height range of approximately 6-7.2 metres.

Privacy

1. The respondents want the privacy provided to them by the hedge, which acts as a solid screen along the common boundary. They submitted that tree 7, which was replaced and is only ~4.5 metres tall, allows some overlooking. They provided photos ('Photo 4' and 'Photo 5' in Exhibit 3) to demonstrate this. Those photographs, apparently taken from the respondents' living room, appear to show a person standing at the nearest edge of the applicant's deck. Their head can just be seen above the foliage of the shorter tree (tree 7) while adjacent trees provide screening up to the applicant's roof line. Trees around the height of tree 7 would provide privacy in most circumstances. The height of other trees is not necessary even for complete privacy. It seems that trees around 5-6 metres tall would provide almost complete privacy.

Other factors contributing to view obstruction

1. The respondents, and Ms Allen in her report, point out other features that obstruct the applicant's views: a more distant eucalypt, some palms on the respondents' land that Ms Allen noted would grow above the view. Mr Stocker's photos show those features as part of the view. They do not obstruct significant portions of his water views, whereas trees in the hedge do obstruct significant portions of those views and will soon obstruct those views entirely from parts of Mr Stocker's dwelling.
2. The respondents and Ms Allen also referred to the opaque balustrade on Mr Stocker's deck. Ms Allen suggested there would therefore be no benefit to the applicant's views from pruning any lower than the top of the balustrade. I find the nature of the balustrade is not material to determining an appropriate height for pruning the trees, as only a section of the balustrade is opaque, while the remainder is transparent. Furthermore, when standing in the applicant's dwelling, whether on the deck or further back in the rooms, one's eyes would be well above the top of the balustrade so that features beyond the balustrade might be below its level but might still obstruct part of the view.

Steps taken by the parties

1. Mr Stocker has made repeated requests to Ms Robbins and Mr Johnston for the trees to be pruned. Ms Robbins and Mr Johnston have shown little willingness to reach any compromise. Although the hedge acts as a screen along the boundary, the respondents expect to maintain complete control over it on the basis that it is planted on their land.

Whether the trees lose their leaves

1. The trees are evergreen and therefore provide a dense screen throughout the entire year.

The nature of the views

1. From Mr Stocker's deck, the local hinterland can be viewed, with the Pacific Ocean and its horizon in the distance. The ocean is a valuable part of the view, as recognised by Senior Commissioner Roseth at [26] in the oft-quoted view-sharing principles of Tenacity Consulting v Waringah (with my emphasis in bold): "26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured." The water views are already significantly diminished, and will only become more so.

Parts of the dwelling from which the view is obstructed

1. The view is obstructed from the deck and living areas of the applicant's upper storey. While it might be unreasonable to expect views from the ground floor at the rear of his dwelling, these areas of the upper floor are ones where people would spend leisure time, and from which there is a reasonable expectation to enjoy the view that was available earlier.

Conclusions

1. I find that sunlight to Mr Stocker's dwelling is not severely obstructed by trees in the hedge belonging to his neighbours Ms Robbins and Mr Johnston.
2. I find that trees in the hedge severely obstruct views from Mr Stocker's dwelling, in particular the broad view of the landscape and the ocean beyond when viewed from living areas on the upper floor of his dwelling. At the time he received consent for his dwelling, which was then constructed directly, the trees were likely to be some 5-6 metres tall. Except for a shorter tree that is a more recent replacement planting, trees in the hedge are now some 6.5-8.5 metres tall.
3. Weighing the benefits of the trees against the applicant's interests, I find that reducing the trees' height to 5-6 metres would remedy the view obstruction while retaining almost all of the privacy benefits they provide to the respondents. Maintaining the trees at this height will prevent the obstruction recurring. The trees should tolerate this extent of pruning. The first instance of pruning must be below the long-term maintenance height to allow new growth to develop from the larger cut branches and stems. That new growth will then be maintained through regular pruning. Frequent pruning may be an onerous burden for the respondents, so pruning to a height to allow for annual regrowth will avoid pruning being required more than once each year. After the initial pruning, ongoing pruning should take place in autumn to retain for the respondents the maximum shading of the western sun during summer. The fence, which Ms Allen described as being 2.2 metres in height, can be used as a practical reference point for pruning height. The alternative to such orders would be to order removal of the trees, which would be a less favourable outcome for the respondents.
4. Unless otherwise consented to by the applicant, pruning must be done from the respondents' side, with the applicant to allow access only for the purposes of cleaning up fallen debris.

Orders

1. For the reasons given above, the Court orders: 1. The application is granted. 2. Within 30 days of the date of these Orders, the respondents are to prune, or engage and pay for a suitably qualified contractor to prune, all trees in the Quandong hedge (~18 trees) along their western boundary and extending to their northern boundary, so that each tree is no more than 2.5 metres above the top of the nearest part of the adjacent paling fence. 3. The respondents are to prune, or engage and pay for a suitably qualified contractor to prune, the hedge during April-May each year, beginning April-May 2021, so that each tree is no more than 3.0 metres above the top of the nearest part of the adjacent paling fence. 4. The works in Orders (2) and (3) are to be done from the respondents' property unless the applicant agrees otherwise. 5. On reasonable notice, the applicant is to allow access for cleaning up of debris following each pruning event. 6. The exhibits are returned, except for A and B.

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: 22 October 2020