Tanios v Giourgas [2023] NSWLEC 1806 | Case summary

JUDGMENT This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

Background
George Tanios, the applicant, owns and occupies a property in Allawah. The respondents, Steven and Mary Giourgas, live in the adjacent property, north-west of the applicant. Both parties' two-story dwellings have the same front setback from the street and face south-west over shallow rectangular yards. The gap between the dwellings is about 2.5 metres (m).
Mr Tanios' occupation long predates the Giourgas'. When the respondents purchased and occupied their property in about 2005, they inherited a hedge of Thuja sp., growing close to the common boundary between the parties' front yards.
Mr Tanios contended that the hedge severely blocked sunlight to a front dwelling window and caused mould on outer walls. The applicant claimed that the previous owner of the 'Giourgas property' had cut the hedge low to allow entry of sunlight, but the respondents would not prune the hedge, or prune it sufficiently, to remedy his alleged severe sunlight obstruction.
Consequently, Mr Tanios made an application to the Land and Environment Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), and s 14B of the Trees Act.

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
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).
Three conifer trees were evenly spread in a line along the boundary. They had melded together over many years. Though the planting history was unclear, given the tree's uniform species, configuration, and appearance, and their role providing privacy, I am satisfied that the trees are planted so as to form a hedge (s 14 A(1)(a)). As the trees were about 4 m tall, s 14A(1)(b) was satisfied. Therefore, s 14A(1) of the Trees Act is engaged.
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: 14B Application to Court by affected land owner (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.
The applicant has satisfied s 14C(1)(a) of the Trees Act, requiring notice of the application for order to be given to owners of affected land. Under s 14C(1)(b), Mr Tanios was required to provide notice of the application for order to Georges River Council (Council). Though the case file included no record of satisfaction of s 14C(1)(b), I considered such notice unnecessary. To facilitate a cheap, quick, and just resolution of the dispute, I thus invoked powers conferred at s 14C(3) of the Trees Act to waive the applicant's requirement to provide notice.
Section 14D of the Trees Act details the Court's jurisdiction to make a broad range of orders.
Section 14E addresses matters of which Court must be satisfied before making an order, as follows:
(1) The Court must not make an order under this Part unless it is satisfied: 1. (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and 2. (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.
Mr Tanios' affidavit of 28 October 2023, at Annexure A, included a copy of a letter to Mr Giourgas, dated 9 June 2023. In the letter, Mr Tanios requested pruning of the front trees to 2-3 m, "to prevent them from casting excessive shadows on the front of my house" and to remedy mould and slime which had established on the applicant's front walls. Mr Tanios offered to contribute to the cost of the works but advised that an application under the Trees Act would be lodged if no reply was received within two weeks.
Mr Giourgas, in an affidavit dated 23 October 2023, claimed to have complied with the applicant's pruning request on 29 June 2023. Therefore, Mr Giourgas considered lodgement of the application, received upon his return from overseas on 30 August 2023, unreasonable.
Regardless of Mr Giourgas' position, based on the correspondence above, I am satisfied that the applicant has met the requirement to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated, and that s 14E(1)(a) of the Trees Act is engaged. Section s 14E(1)(b) is also engaged upon satisfaction of s 14C of the Trees Act.
The next step is to assess the severity of the obstruction of sunlight to the applicant's window, as a consequence of any or all of the trees in the hedge.
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, 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. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required.
Is the obstruction of sunlight severe?
Mr Giourgas had pruned the hedge to a height of about 4 m on 29 June 2023, notwithstanding that Mr Tanios claimed to be unaware of such pruning.
The applicant's dwelling contained windows on both levels of the north-west facing side wall. The nominated front room window faced south-west and was located at the rear of a balcony, deeply recessed back from both dwellings' front building line. The balcony was covered by the sloping dwelling roof that protruded low over the front eave.
Consequently, the applicant's front room window can only be impacted by direct sunlight from about mid-afternoon onwards. In summer, when the sun's arc passes overhead, sunlight would be primarily obstructed by the applicant's dwelling roof. The hedge would probably obstruct sunlight to the window around mid-afternoon, and sunlight would probably stream into the window by late afternoon.
Photographs included in Annexure A of Ms Giourgas' affidavit showed that the hedge heavily obstructed sunlight to the window at 5:03 on 18 October 2023 and marginally more at 5:33 pm on 19 October 2023. At 3:25 pm on 9 October 2023, however, heavy sunlight obstruction was caused by a building rather than the hedge as evidenced by straight shadow edges on the photograph. Regrettably, photographs illustrating summer or winter circumstances were not included.
Mr Tanios said the impact of obstructed sunlight was greatest in winter, at which time the sun's arc is further north. More sunlight would reach the applicant's north-west facing side windows during winter, but, until mid-afternoon, obstruction of sunlight to the nominated front south-west facing room window would again be primarily caused by the veranda roof and the room's aspect.
Shadows would also be caused by the adjacent tall side wall of the respondents' two storey dwelling, especially as the applicant's window is located at the rear of the balcony, deeply recessed back from the front building alignment. Though the hedge may obstruct late afternoon winter sunlight to the applicant's front yard for a sustained period, the hedge would only obstruct winter sunlight to the front room window for a few hours.
Mr Tanios did not include shadow diagrams to assist the Court's assessment of sunlight obstruction to his front window. Nonetheless, my conclusion is that the hedge would likely obstruct sunlight to the applicant's window for between one to two hours per day in the mid to late afternoon, though probably at different times throughout the year. If the hedge was absent, however, I am not satisfied that the applicant's nominated dwelling window would receive direct sunlight prior to mid-afternoon.
Neither the summer or winter scenarios outlined above depicted a situation where the hedge was severely, or even moderately, obstructing sunlight to the applicant's nominated window. As the jurisdiction is restricted to severe obstruction of "sunlight to a window of a dwelling situated on the applicant's land", s 14(E)(2)(a)(i) of the Trees Act is therefore not satisfied.
As s 14E(2)(a) of the Trees Act is not engaged, the Court has no powers to make Orders and the application under Pt 2A is refused. Thus, there is no need to consider the balancing of interests required by s 14E(2)(b) or the discretionary considerations at s 14F of the Trees Act.
Jurisdictional requirements - Part 2
With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Section 8 of the Trees Act addresses the same requirement to provide notice of the application the applicant satisfied at s 14C of Part 2A. Similarly, Mr Tanios has met the requirement at s 10(1)(a) to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, as this is identical to the requirement already satisfied at s 14E(1)(a) of the Trees Act.
The next major test that is posed, by s 10(2) of the Act, states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: 1. has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or 2. is likely to cause injury to any person
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.
Walls damage by mould and slime
During the site inspection, the applicant indicated an area on the front balcony outer masonry wall with a green stained appearance, which he attributed to damage from mould and slime. Under the Trees Act, mould and slime are not considered to be damage. Mould and slime may be cleaned with detergent and or high-pressure water and such cleaning is considered to be reasonable maintenance. As explained below, the Court takes a similar approach as with minor debris shed from trees.
An expectation to undertake reasonable maintenance arising from urban trees was established in a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20]: 1. "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." 2. "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."
In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 (Hendry), at [11]-[14], the maintenance expectation arising from Barker was extended to include the cleaning of mould and slime associated with urban trees. As a result, the applicant's claim of damage by mould and slime is refused.
Risk of injury to persons from spiders
Mr Tanios claimed that his grandchildren were at risk of injury from spider bites when they used a side path that passed next to the hedge. No evidence of previous bites or other injury was submitted, however.
Mr Giourgas objected to 'injury from spiders' being introduced as it was not in evidence to the Court and because Mr Tanios' application did not include "risk of injury to persons". Though Mr Giourgas' objection was reasonable, I allowed the applicant's submission as the 'spider' question could be answered without disadvantage to the respondents.
With respect to claims of damage or injury from animals, the Court has decided that the damage, or risk of injury, must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.
This is explained in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, at [189], where Preston CJ says: "Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]."
Therefore, no claims related to bites from spiders or other animals occupying trees may be successful under the Trees Act.
Conclusions
In the application under Pt 2A of the Trees Act, obstruction of sunlight to a front window of the applicant's dwelling was not primarily caused by the hedge. Rather, sunlight obstruction was primarily due to the window's south-westerly aspect and a low sloping roof shading the window, which was located at the back of a recessed balcony. The respondents' tall side dwelling wall also restricted sunlight from reaching the window until about mid to late-afternoon, especially in winter.
Relative to these factors, the hedge was likely to be causing significant sunlight obstruction to the window for about one to two hours during part of the late afternoon. Consequently, the hedge caused only a minor obstruction of sunlight to the nominated window, thus the application under Pt 2A of the Trees Act was refused.
In the application under Pt 2, mould and slime are not considered to be damage for the purpose of the Trees Act. The applicant's claim was refused with consideration of Hendry, at [11]-[14], where the maintenance expectation arising from the Tree Dispute Principle established in Barker was extended to include the cleaning of mould and slime.
With respect to the claimed risk of injury to persons from spiders (or from any animal), the Court has decided that the injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the applicant's claim of risk of injury to persons is also refused.

Tanios v Giourgas

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