Van Zwieten & anor v Radge & anor

Application under Part 2 8The applicants allege that roots from trees 1 and 2 are causing damage to their paving. The trees are approximately 60 cm from the boundary fence. The damage comprises lifting and moving of square pavers, causing an uneven surface. 9At the hearing six pavers had been removed close to tree 1 and a root approximately 50 mm in diameter could be seen at the surface. The applicants say that this area, approximately half a square metre, is the only area damaged by tree roots - other uneven areas were damaged by a bobcat. The applicants say that more damage is likely in future as the trees continue to grow. 10The respondents acknowledge that roots of Tree 1 have caused damage. Ms Mackenzie stated that roots could be partially cut before relaying the paving. 11The applicants point out that four of the five newer trees are planted even closer to the boundary, approximately 20 cm from the fence. They say it is inevitable that they too will damage paving or other parts of their property in future. Ms Mackenzie stated that, as the trees are so small (less than 2 metres tall), they are unlikely to cause damage within the near future and therefore the Court has no jurisdiction over these trees.

Findings under Part 2 12The proximity of the exposed roots to the surface satisfies me that roots of tree 1 have caused damage, even if the bobcat also caused damage in the same area. Thus the Court's jurisdiction at s 10(2)(a) is enlivened. The area of damage is relatively small, and the paving is by no means in flawless condition elsewhere. However, considering the proximity of trees 1 and 2, and their likely growth rates, further damage seems likely. Despite Ms Mackenzie's suggestion that the tops of the roots could be cut before relaying the paving, I accept the applicants' point of view that further damage is likely and that it is reasonable to take steps to prevent this. Regarding the risk of damage in the near future, I see no reason to diverge from the 'rule of thumb' established by the Commissioners in Yang v Scerri [2007] NSWLEC 592, and applied consistently by the Court since then: that a period of around 12 months reasonably represents 'the near future' for the purposes of the Act. 13Installing a root barrier, or even a shallower root deflector, would prevent damage for the foreseeable future. However its installation would be a significant undertaking of some expense to the respondents (should I so order) and would cause some disruption to the applicants. I am therefore reluctant to take that course. I also note that the respondents, while aware of the application for removal of two of the established trees (1 and 2), have not suggested a root barrier or any other suitable alternative to removal. 14Trees 1 and 2 are in close proximity to the paving and are likely to cause damage in the near future. The trees provide benefits described within s 12, most notably to the respondents' amenity, privacy and garden design. However, due to the lack of suitable alternatives, I find it reasonable that they be removed. 15Regarding the five smaller trees, they are not causing damage presently and I do not accept that they are likely to cause damage in the near future and therefore the Court does not have jurisdiction over these trees under Part 2. They are closer to the pavers than trees 1 and 2 and the respondents are now at least aware of the possibility of their roots causing damage in a longer timeframe. Should such damage occur the Van Zwietens could of course make a new application.

Application under Part 2A - obstruction of sunlight 16The applicants say that the trees obstruct sunlight to five windows, all part of the sunroom. W1 is on the north side of their dwelling, W2-W5 on the eastern side facing their rear garden. They have not submitted shadow diagrams but rely on photographs accompanying the respondents' statement as well as the respondents' shadow diagrams. They say these show a severe obstruction of sunlight, not only at the winter solstice but right through to the equinox. They say they and their two children use the room frequently, and that it used to be sunny and warm in winter but is now dark and cold. 17The respondents, while conceding that there is some interference of sunlight caused by the hedge, say there is insufficient evidence that the hedge causes a severe obstruction. They say there is no expert evidence to show this; that the shadow diagrams referred to by the applicants were prepared by the respondent, whose expertise in this area is unknown. They say therefore the Court cannot make orders. 18The respondents further submit that other plants, most notably the applicants' palm tree, obstruct sunlight. The applicants point out that it is a single plant that filters light, rather than blocking it. The applicants point to photos showing the solid shadow caused by the hedge on their windows, with filtered shade from the palm on other surfaces. 19The respondents argue that the trees are part of their garden design, created to maximise amenity to their property and screen the large industrial buildings to their east. The applicants acknowledge this benefit of screening but argue that their resulting loss of amenity is more significant. 20The respondents say they will lose privacy if the hedge is pruned to 2 metres, as the applicants will be able to see into their garden. During the hearing Ms Mackenzie stood in the respondents' garden so we could see from the applicants' garden the likely extent of privacy loss. I accept that pruning the plants may result in some loss of privacy, but this must be balanced against the amenity loss for the applicants. The applicants conceded during the hearing that pruning the trees to 2.4 metres might allow sufficient light to their windows. 21Ms Mackenzie also pointed out the negative impact that pruning at 2 metres would have on the trees, as it may leave their tops with an unattractive woody appearance.

Findings regarding sunlight 22Firstly I will be treating all the plants as one hedge, despite the two distinct planting times. Notwithstanding Preston CJ's discussion in Johnson v Angus [2012] NSWLEC 192, especially at [33] and [43], the five newer Cypress trees have been planted so as to extend an existing hedge. In Johnson, a single tree that predated an adjacent planted hedge could not be regarded to form part of that hedge. Here, the original Cypress trees were planted so as to form a hedge, and the newer ones planted to extend that hedge - i.e. to form the same hedge. 23Secondly, as discussed by the Commissioners in Wisdom v Payn [2011] NSWLEC 1012 at [66], the Court's jurisdiction applies to all trees within a hedge where at least two trees reach 2.5 metres height, even if some of the trees are less than that height. 24Despite the lack of expert shadow diagrams, including elevations that Mr Sattler says would be helpful, I am satisfied from the photos and the onsite view, with my experience, that all the established trees along the common boundary cause a severe obstruction of sunlight to the applicants windows from autumn equinox, through winter to the spring equinox. The hedge appears to deprive them of the only winter sunlight available to their sunroom, while this is the period that sunlight is most desired. The sunroom looks to the rear garden and I accept it is a room they would frequently use. The loss of sunlight is significant. The first respondent's shadow diagrams (even while he may not be an expert) at least support my own view of what the likely impacts would be to the applicants. 25I accept that pruning is not the most desirable outcome for established cypress trees, and it may negatively affect their appearance. I also accept the respondents' desire for screening and privacy. Pruning will indeed affect the present uniform height around the boundaries of their garden. However the negative impact to the applicants is such that, weighing these matters as required by s 14F and 14E(2)(b) I find that pruning of the trees is warranted. 26To allow sunlight in while maintaining some screening, plants toward the rear boundary will be maintained at a higher height. 27I note that the applicants have said they wish to prune the southern face of the hedge along their boundary, so no orders will be made for pruning that face. 28No orders have been sought for repairing the damaged paving so this task lies with the applicants. Because trees 1 and 2 are being removed I note that the applicants may cut the exposed roots. 29Orders (1)The application is upheld in part. (2)Trees 1 and 2 are to be removed by the respondents within 60 days of the date of these orders. (3)Beginning 2014 the respondents are to prune or engage a suitably qualified horticulturist or arborist to prune trees 3-8 and 13-17 to a height of no more than 2.4 metres (measured above ground level along the boundary fence) annually within 2 weeks either side of the autumn equinox. (4)Beginning 2014 the respondents are to prune or engage a suitably qualified horticulturist or arborist to prune trees 9-12 to a height of no more than 4 metres (measured above ground level along the boundary fence) annually within 2 weeks either side of the autumn equinox. (5)The applicants are to provide all access for cleaning up debris from the works in (3) & (4) during reasonable hours of the day, on reasonable notice from the respondents.

D Galwey Acting Commissioner of the Court

(See addendum: Numbered Plan) 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: 09 January 2014