Thompson v Quine

Land and Environment Court (NSW)|2021-10-19|Before: Centre J

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

Background to the application

Elizabeth Thompson ('the applicant') has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for neighbouring trees to be pruned and maintained so as to restore views from, and sunlight to, her Thirroul dwelling. The trees subject to the application are on the adjoining property to Ms Thompson's north, belonging to Christine Quine ('the respondent').

Framework for this decision

Before the Court can make orders under Pt 2A of the Trees Act, several jurisdictional tests must be met:

The applicant made reasonable effort

Ms Thompson discussed issues of sunlight and view obstruction with Ms Quine. Ms Thompson invited Ms Quine to her property to see the impact of the trees for herself. Ms Quine did not attend. Ms Thompson sought mediation via the Community Justice Centre but Ms Quine declined to attend. I am satisfied that this history demonstrates Ms Thompson made reasonable efforts to reach agreement with Ms Quine.

Trees that are planted so as to form a hedge

Ms Thompson's application showed a row of seven lilly pillies on Ms Quine's property along the common boundary, with a bottlebrush near the eastern end of that row. Ms Quine stated in her affidavit that her survey plan showed only six lilly pillies. At the hearing Ms Thompson clarified that there were indeed six lilly pillies.
Ms Thompson regards the six lilly pillies and the bottlebrush as forming a hedge. Ms Quine stated via her affidavit that she arranged for these trees to be planted during construction of the two-storey development to her south, part of which Ms Thompson now owns: "…to provide me with some privacy in my back yard and to attract native birds. It was not my intention for the trees to create a hedge as they grew." Ms Yeatman, representing Ms Quine, submitted that Pt 2A of the Trees Act does not apply to the trees because they were not planted with an intention to form a hedge: Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 at [28].
'Hedge' is not defined within the Trees Act. Ms Quine might have her own opinion as to what forms a hedge. In my view, and in the many hedge matters that have come to the Court, a hedge will have a combination of some or all of the following features: a linear planting style, trees of a single species or alternate plantings of few species, close and regular planting spacings, foliage of adjacent trees meeting and forming a continuous screen, and the trees may or may not be pruned to a formal shape: see also Wisdom v Payn [2011] NSWLEC 1012 at [45]. Ms Quine's lilly pillies were planted to create a dense privacy screen taller than the boundary fence, and they meet the description of a hedge given above. I find the lilly pillies are planted so as to form a hedge.
The bottlebrush (Tree 8 in the application) is a different species. Some physical separation between the bottlebrush and lilly pillies is apparent in photographs. I find it is a separate tree, not part of the hedge. Therefore Part 2A of the Trees Act does not apply to the bottlebrush, regardless of its impacts on Ms Thompson's views or sunlight.
The lilly pillies are planted to form a hedge and are approximately 7 metres tall, so Pt 2A of the Trees Act applies to these trees.

Obstruction of views and sunlight

The lilly pilly hedge is planted along the common boundary, close to Ms Thompson's north-facing windows. Her dwelling is on the ground floor of a two-storey building. The trees are up to 7 metres tall and overhang the boundary, as shown in photographs, especially photo 4 of Exhibit B. Shadow diagrams are not required to demonstrate that the trees obstruct most sunlight that would otherwise be available to these windows during autumn, winter and spring - this can be readily inferred from the survey plan and photographs. Ms Thompson's outlook from these windows includes the sky, and from her deck the distant landscape might be visible. Trees in the hedge remove most of that outlook, as shown in her photographs. I find the trees severely obstruct sunlight to her windows and views from her dwelling.

Relevant matters

I have considered the matters at s 14F of the Trees Act and discuss those that are relevant below.
The trees are close to the boundary, close to Ms Thompson's dwelling, overhang the boundary, and obstruct most of her available sunlight and outlook.
Ms Yeatman was of the opinion that council consent would be required to remove or prune the trees. Ms Quine has told Ms Thompson that she can prune overhanging branches as she likes. It seems that Ms Thompson would need to obtain council consent each time she wants to do this.
Ms Yeatman described the importance of the trees for Ms Quine's privacy. Ms Thompson submitted that unreasonable impacts fell to her from Ms Quine's desire to gain visual screening from the dwelling above Ms Thompson's.
Apart from some limited environmental value and contribution to ecosystem services, and the privacy afforded to Ms Quine, the trees otherwise have no significant value.
The issue requiring most attention was the height of the trees when Ms Thompson purchased her property in 2015. The Trees Act was not intended to provide sunlight or views that were not available to the applicant. It must be the applicant who has lost access to sunlight or views, not a previous owner of their property: Jones v Cooper [2020] NSWLEC 1688 at [24]-[29]. Ms Thompson submitted that most of the lilly pillies along the boundary were not above the boundary wall (2.3 or 2.4 metres in height) even if some at the hedge's western end had branches up to 4 metres tall. Ms Quine thought all the trees were 4 metres tall in 2015. Photos 3 and 4 of Exhibit 2, taken in 2015 and 2021 respectively from a similar point, were relied upon. I accept that a branch in 2015 appears to have been up to 4 metres tall, but most of the lilly pillies' foliage is considerably below this height. Closer to Ms Thompson's clothesline, there does not appear to be foliage along the wall in 2015, whereas the 2021 photo shows lilly pilly foliage along and above this section of the wall. In my view, the situation for Ms Thompson has changed somewhat dramatically since 2015. I find that it would be reasonable to restore the situation as much as possible, by pruning all trees in the hedge to a height slightly above the wall. Ms Quine has offered to prune them to 3.5 metres, but as this would still be a metre above the wall, this would be taller than trees at the hedge's eastern end in 2015, even if shorter than trees at its western end at that time. Furthermore, with a metre of canopy remaining above the wall, branches would continue to grow across Ms Thompson's property, requiring her to frequently obtain council consent for pruning these back to the boundary to maintain her sunlight and views. This seems an unreasonably onerous task. Annual pruning to 100 mm above wall height would allow for regrowth to maintain some privacy screening for Ms Quine, while minimising the hedge's impacts to Ms Thompson. Where the wall steps up in height the hedge may step up also.
Ms Quine has a pending development application which, she stated, may include removal of some or all of the trees. No evidence of this was adduced, and consent for the development has not yet been granted. Even if Ms Quine removes the trees in future, orders will restore Ms Thompson's access to sunlight and views in the meantime.

Orders

As a result of the foregoing, the Court orders that: 1. The application is granted to the extent of the orders below. 2. Until the lilly pilly trees in the hedge along the respondent's southern boundary are removed, during November each year beginning November 2021, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge so that they are no more than 100 mm above the top of the adjacent boundary wall. 3. The respondent is to give the applicant at least 2 days' notice of each pruning event in order (2). 4. Should the applicant want any debris from pruning ordered in (2) to be removed from her property, she is to provide any access required for this during reasonable hours of the day.

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 2021

(2012) 190 LGERA 334

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