The Owners - Strata Plan 92669 v Elvy

The on-site hearing

1. As is customary, the hearing commenced at the Respondents' property for an inspection of the trees. Mr Green represented the Respondents while Mr Rix acted as Agent for the Applicant, as confirmed in a letter from the Court dated 17 November 2022.
2. The trees were tall and formed a dense wall across the back of the property. A large tree was growing in the Respondents' south-west corner while a five-storey apartment building was located close to the northern boundary of both properties. In November 2022, the Respondents had about 2.6 m pruned from the height of the majority of the trees. The trees close to the building to the north were not pruned as low to maintain their aesthetic contribution, as they are tucked behind the apartment building to the north, and effectively produce no negative impact for the Applicant.
3. The Court moved to the Applicant's property, which has apartments on four levels. A first-floor apartment was initially assessed for severe obstruction of light to a window of a dwelling, followed by Mr Rix's second floor apartment, where the claim was for severe obstruction of views.

Jurisdictional requirements - Part 2A

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].
2. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Act?
3. Section 14A(1) states: (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).
4. About 20 trees are located in a fairly straight row along the common boundary. They are spaced apart evenly, and I am satisfied that they were planted so as to form a hedge. The trees average about 5m in height and thus s 14A(1) of the Trees Act is satisfied.
5. The Court is obliged to initially consider matters pursuant to s 14C of the Act as follows: 14C Notice of application for order to be given to owners of affected land (1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the trees are situated, and (b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and (c) any other person the applicant has reason to believe will be affected by the order. (2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period. (3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.
6. I am satisfied that s 14C of the Act has been met. The Respondents challenged Mr Rix's authority to act as Agent for the Applicant, but this is confirmed in a letter from the Court dated 17 November 2022.
7. The Respondents also noted that the Applicant had not served any sworn affidavit and that documents filed by the Applicant are neither signed nor identify their author, notwithstanding that the onus is on the Applicant to prove its case. Given that the rules of evidence do not apply under this jurisdiction, and it is common for litigants to be self- represented, this is not an unusual occurrence. I am satisfied that the relevant lodged documents should be attributed to Mr Rix, as agent for the Applicant, and that it is in the interest of a cheap, quick and just resolution of the dispute for the documents to be accepted.
8. Section 14E(1)(a) of the Act requires that the Applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated. The Respondents allege, at par 13 of Mr Green's Submissions dated 5 December 2022, that "the first that they heard from the Applicant about this matter was when they were served with the application", and that the Applicant has not made a reasonable effort to reach agreement with the Respondents.
9. The Applicant, however, provided evidence of verbal and written requests for pruning the trees since August 2021, and noted that Mr Elvy had visited the second-floor unit in October 2021 to inspect the trees and the alleged view obstruction. Also included in the Applicant's evidence was a copy of a text message in December 2021 from Mr Elvy advising that the trees would not be pruned because of their importance to the Respondents' privacy.
10. Consequently, the Applicant had approached its neighbour on multiple occasions and the request for pruning was clear. The Respondents claimed that Mr Rix's demands on Mr and Mrs Elvy were not "a reasonable effort to reach agreement", but the Act does not prescribe the conduct of negotiations.
11. Further, it is somewhat disingenuous to suggest, at par 15 of Mr Green's Submissions, that "Mr Rix made no effort to resolve (the Elvy's privacy concerns) before the application was filed on 22 July 2022, given that Mr Elvy had outright rejected Mr Rix's pruning request in December 2021.
12. To provide clarity around this requirement, Preston CJ provides extensive commentary in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ("Robson"). Robson deals with this requirement at s 10(1)(a) of Pt 2 of the Trees Act, but this is the same requirement as at s 14E(1)(a) of Pt 2A of the Act.
13. At [194] - [195], his Honour says: "[194] The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. [195] The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
14. Given this context where "a reasonable effort to reach agreement", is less demanding under the Act than in many other jurisdictions, and the history informing this dispute, I am satisfied that there has been a reasonable effort made by the Applicant to reach agreement with the owner of the land on which the tree is situated, as required by s 14E(1)(a) of the Act.
15. The next step is to assess the severity of the obstruction of sunlight to a window of a dwelling, and obstruction of views from the Applicant's dwelling as a consequence of any or all of the trees in the hedges.
16. Section 14E(2)(a) states: (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.

First floor apartment - obstruction of sunlight

1. The first-floor apartment of Dr Gosh was a narrow rectangular shape with glass doors and bedroom windows facing east, close to the common boundary. The apartment was relatively dark, but I was not satisfied that obstruction of sunlight was primarily as a consequence of the hedge.
2. The Applicant's land near the common boundary is higher than the Respondent's land. The Applicant claims that the first-floor apartment potentially gained sunlight from "ten minutes after sunrise through to about 10:30am" and that the hedge blocks the first two hours of this direct sunlight. The Applicant also submitted that when Dr Gosh purchased his apartment in 2016, "the obstructing hedge was under the top of the roof line of the Respondents' dwelling and did not obstruct the early sun. The hedge now blocks the first two hours of this morning sun".
3. The Respondents, who had the height of the majority of the trees reduced by about 2.6m on 6 November 2022, claimed that the building design of the first-floor unit, "especially the overhanging balcony floor above" significantly contributes to that shade." A report from architects at Design Studio 22, dated 28 November 2022 and submitted by the Respondents, suggested that at the summer solstice, the trees would block sunlight from sunrise until about 6:15am, by which time full sun is available. After this time, the deep overhanging balcony floor would progressively block sunlight penetration until the windows were fully shaded by about 8:05am.
4. The report claims that at the winter solstice, the trees would block sunlight at sunrise but about 25% direct sunlight would be available until about 8:15am. By 8:30am and for the rest of the day, however, sunlight is fully obstructed by the overhanging balcony floor, the extended wall separating apartments '1' and '2', and the five-storey building to the north and north-east of the Applicant.
5. The Applicant provided photographs of light to Dr Gosh's windows and doors which appeared to contradict the precise times determined in the Design Studio 22 report, but I am nonetheless satisfied by the substance of the findings; that the hedge contributes to obstruction to sunlight very early in the mornings, but the primary obstruction of sunlight is caused by the deep balcony roof overhang and the eastern orientation, which is compounded in winter when the sun, in its arc to the north, is mainly blocked by the extended wall separating apartments '1' and '2', and the adjacent five-storey building on the Applicant's northern side.
6. Therefore, though the hedge was impacting sunlight to windows of this apartment to a minor extent, I was not satisfied that the obstruction of sunlight as a result of the hedge was severe. This element of the application is thus refused.

Second floor apartment - obstruction of views

1. In the second-floor apartment, viewing points nominated by the Applicant were from the living area and balcony with the claimed severe obstruction relating to views towards the north-east and east.
2. The hedge had been pruned about 4 weeks prior to the hearing, with trees that had been restricting the Applicant's view reduced in height by about 2.6m, while trees adjacent to the five-storey building to the north were pruned far less as they are sheltered behind this building, and do not obstruct the Applicant's view, independent of this building.
3. As a result of this pruning, the Applicant's desired views of ocean, Mutton Bird Island and the Coffs Harbour Marina were available from sitting or standing positions on and near the balcony , and at least from a standing position from deeper within the dwelling. Thus, the views were largely unobstructed by the hedge.
4. In consideration of s 14E(2)(a)(ii) at [14] of Tooth v McCombie [2011] NSWLEC 1004 ("Tooth"), Fakes C notes "the word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."
5. At [15]-[18] of Tooth, Commissioner Fakes adds; "[15] Therefore it is essential that clause 14E(2)(a)(ii) be satisfied before the Court can proceed to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders. [16] Whilst there may have been jurisdiction at the time the application was made, that is, the trees may have severely obstructed a view from the applicants' dwelling, the site inspection at the hearing clearly shows there is no obstruction of any view caused by any of the trees subject to the application. [17] While the evidence in the application must be considered, the Court's determination of these matters is substantially based on the facts present at the time of the hearing. [18] Therefore the test in s 14E(2)(a)(ii) is not satisfied and the Court has no jurisdiction to make an order under Part 2A. This includes any order for the future maintenance of the trees."
6. Consistent with the analysis in Tooth, I am not satisfied here that "the trees concerned: are severely obstructing a view from a dwelling situated on the applicant's land", and therefore s 14E(2)(a)(ii) of the Trees Act is not engaged.
7. With the hedge having been pruned before the hearing, and perhaps anticipating this determination, the Applicant submitted Steber v Jobb [2019] NSWLEC 1308 ("Steber"), a case where, at [41]-[42], Galwey AC argued an alternative approach where hedges are pruned just before an onsite hearing, as follows; "[41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). [42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order."
8. While it is open to me to take this alternative approach, after careful consideration, I do not find it to be appropriate here. The application notes contact by Dr Gosh with the Respondents in 2017, then an absence of contact until August 2021. In October 2021, Mr Elvy inspected available views from the second-floor unit, and on 5 December 2021, Mr Elvy advised Mr Rix that he and Mrs Elvy had decided "due to privacy reasons to leave them (the trees) untouched".
9. Thus, there were two communication contacts about view obstruction by the Applicant between August and October 2021, no response to the Respondent's text of 5 December 2021, and no further contact with the Respondents prior to the lodgement of the application on 22 July 2022.
10. This timetable of relatively minimal contact with the Respondents over a short period in the recent past, and the Respondents' single hedge pruning does not conform with the scenario at [41] of Steber, where "a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them". As the context in this case is therefore dissimilar to Steber, it would thus be unreasonable to invoke this approach here.
11. As s 14E(2)(a) of the Trees Act is not met for the hedge, there is no need to consider the balancing of interests required by s 14E(2)(b) to determine if: (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.
12. Had s 14E(2)(a) been engaged, however, relevant elements of s 14F would require consideration. Of particular relevance would have been the trees' tolerance of pruning (s 14 F(k)) and the trees' contribution to the Respondents' privacy (s 14 F(l)). The hedge plays an important role in providing privacy for the Respondents, and the Respondents' tall dwelling roof blocks most of the Applicant's view below the coastline. The height to which the trees were pruned by the Respondents provides the Respondents with considerable privacy whilst re-establishing views for the Applicant, and it would not be necessary nor reasonable to prune the trees lower than the approximate level of the top of the Respondents' roof line, provided that the Applicant is able to retain views above the roofline from a sitting position.
13. The alternative 3m tree height sought by the Applicant would have unreasonably compromised the Respondents' privacy. The trees are likely to tolerate the minor pruning required at the level they were pruned, even if repeated relatively regularly.

Conclusion

1. Due to the orientation and design of the nominated first-floor apartment, with a deep overhanging verandah roof, long north side balcony wall, all doors and windows facing east, and a tall neighbouring building to the north north-east, I am not satisfied that the hedge was severely obstructing sunlight to any doors or windows of this dwelling.
2. As the tree height was pruned before the hearing, broad water views were available to the Applicant at the hearing, so I am not satisfied that the hedge is severely obstructing views from a dwelling
3. Consequently, s 14E(2)(a) of the Trees Act is not engaged, so I have no powers to make orders.
4. I am satisfied, however, contrary to the Respondents' submission, that the photographs included by the Applicant in form G show that broad water views were available from the second-floor apartment upon its occupation in late 2015. Should the Respondents not maintain the hedge, but instead allow the Applicant's view from this apartment to again become obstructed, the circumstances will be deemed to have changed, and, as discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, the Applicant may then make a new application.
5. In such circumstances, if the Respondents again pruned the hedge just prior to the hearing, the remedy in Steber would likely be appropriate. It is also relevant to consider that should orders for ongoing maintenance pruning be made, they transfer with the property to the subsequent owner.

Orders

1. As a consequence of the foregoing, the orders of the Court are: 1. The application is refused.

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: 23 February 2023