Vartazarian v Elworthy; Fallows v Elworthy

The hearing

1. With COVID-19 restrictions preventing onsite hearings at the time, the parties agreed to the matter proceeding via audio-visual means. The parties had filed extensive material prior to the hearing, such that I was of the opinion that neither the hearing nor this decision would suffer from the lack of an onsite view.
2. The hearing took place on 29 May 2020. Ms Natasha Hammond, of Counsel, represented the Applicants in both matters. Mr Turvey To, of Counsel, represented the Respondents in both matters.

Part 2A applies to the trees that are subject to the application

1. According to s 14A of the Trees Act, Part 2A (Court orders - high hedges that obstruct sunlight or views) applies only to groups of two or more trees that are planted so as to form a hedge, and rise to a height of at least 2.5 metres above existing ground level.
2. The Respondents do not dispute that the trees form a hedge, nor that that they rise to at least 2.5 metres. Photographs show a straight row of cypress trees along the Respondents' boundary planted at close and regular spacings, providing a dense screen that is more than 2.5 metres tall. I find that Part 2A of the Trees Act applies to these trees.

The trees are on adjoining land

1. At s 14B of the Trees Act, a property owner can only apply for orders to address a severe obstruction of sunlight or views if the trees causing the obstruction are situated on adjoining land. The Applicants in both matters own apartments that are separated from the common boundary by a strip of common property. This is similar to the situation described in Atkinson v Matherson [2011] NSWLEC 1121 at [3], where the trees were still considered to be on adjoining land. Therefore, the Applicants in both matters are able to apply for orders under Part 2A.

The Applicants gave the required notice

1. The Applicants in each matter gave the notice required at s 14C of the Trees Act.

Orders that can be made

1. Both applications seek the same orders for pruning the trees or, in the alternative, removing the entire hedge. According to s 14D, these are orders that can be made if I find that the trees are severely obstructing sunlight to the Applicants' windows. Rather than being required to make the orders the Applicants seek, I can make orders as I see fit to remedy, restrain or prevent a severe sunlight obstruction.

The jurisdictional tests that must be met

1. Before making orders in this matter, the Court must be satisfied of four jurisdictional tests at s 14E of the Trees Act.

• Firstly, the Applicants must have made a reasonable effort to reach agreement with the Respondents.
• Secondly, the Applicants must have given notice of their applications in accordance with s 14C.
• Thirdly, the Court must be satisfied that the trees concerned are severely obstructing sunlight to the Applicants' windows.
• And finally, the Court must be satisfied that the severity and nature of the obstruction is such that the Applicants' interests outweigh other matters that might discourage interfering with the trees.

1. The first two tests above require some review of the history of communications and correspondence between the parties, and checking of timelines. The third test requires consideration of the evidence and submissions to determine whether the trees are severely obstructing sunlight to the Applicants' windows. The fourth test requires consideration of the matters set out at s 14F of the Trees Act.
2. Although the hearings ran concurrently, each matter must be considered separately on its own merits. The jurisdictional tests must be met in each matter before making any orders in that matter.

Did the Applicants make reasonable effort to reach agreement?

2020/40604 application - Unit 1

1. The Respondents accept that the Unit 1 Applicants have made reasonable effort to reach agreement.

2020/97792 application - Unit 3

1. The Respondents dispute that the Unit 3 Applicants made reasonable effort to reach agreement. They say all the effort was made by the Respondents, who put a proposal to the Applicants after being informed of the issue. The Unit 3 Applicants simply rejected the proposal on the grounds that it gave no benefit to their situation. Mr To, Counsel for the Respondents, submitted that there was clear benefit from the Respondents' proposal to the Unit 3 Applicants, so the Court should find they have not made reasonable effort to reach agreement.
2. There is no requirement at s 14E(1)(a) that the Applicants must be correct in their reasons for refusing an offer, or few tree disputes would progress to a hearing. No matter how flawed a party's position might be, they usually believe they are right. The Unit 3 Applicants had two conversations with the Respondents before receiving and finally rejecting the Respondents' offer. Prior to this, other affidavits tendered as evidence in both matters show a history of negotiations between a representative of the Applicants' Owners Corporation and the Respondents. It was perhaps already clear to the Applicants that the Respondents were not willing to go beyond a certain point of compromise. The Applicants had a preferred outcome that would increase their access to sunlight. That they did not accept something less does not demonstrate a lack of reasonable effort. Just as the Respondents were confident that their preferred outcome was the right one, so too were the Unit 3 Applicants.
3. Prior to the hearing, the Applicants in both matters took part in 'without prejudice' discussions. These further demonstrate reasonable effort by the Unit 3 Applicants. As Preston CJ explained at [194] in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, an applicant's efforts can be made any time up to the Court's determination of the matter, although it is preferable for the applicant to make such effort prior to making an application to the Court. Mr To submitted that the content of those discussions cannot be discussed, so the Court cannot know if they were reasonable. It is not up to the Court to determine the rationality of the Applicants' arguments in those discussions. Rather, the act of engaging in the discussions demonstrates the effort. Consideration of each party's position is left to the hearing, and to this decision.
4. From the history presented within the exhibits, I am satisfied that efforts of the Applicants in both matters were reasonable.

Notice was given

1. In both matters, the Applicants have given notice of their applications in accordance with s 14C.

2020/40604 application - Unit 1

1. The Respondents say that the hedge cannot cause a severe obstruction of sunlight to Unit 1's windows, because a severe sunlight obstruction is caused by structures and other vegetation.
2. Street frontages of these properties face northeast. The land falls to the southwest, toward the rear of the properties. The Applicants' building is set back from the north-western boundary, the common boundary shared with the Respondents, by some four or so metres. Along that side setback, a set of stairs provides access from ground level at the building's front down to the lower level at the rear of the property. At the top of the stairs is a fence of vertical slats atop a retaining wall, spanning from the stairs to the north-western wall of the Applicants' building and separating the two levels of ground.
3. Unit 1 is in the rear part of the Applicants' building, and thus on the 'lower ground' level. Its five windows along this wall facing northwest are four bedroom windows, two in each of the apartment's two bedrooms ('W1' to 'W4' from the northeast), and a laundry window ('W5'). They are not large windows, the bedroom windows being almost a metre wide and the laundry window narrower, with an average sill height of around 1.1 metres.
4. John Denton, survey draftsman and director of Cas Draft Pty Ltd, prepared shadow diagrams dated 21 November 2019 (Exhibit C) illustrating the shadow impacts on the Applicants' building of the hedge, in addition to, and distinct from, the shadow impacts of other elements in the landscape, throughout the day at both the summer and winter solstices and both equinoxes. Additional shadow diagrams showed the impacts of the hedge at the reduced hedge height proposed by the Applicants. Mr Denton's brief statement does not identify who engaged his services, but his plans show the client to be the executive committee of the Applicants' strata plan.
5. Mr Denton prepared additional diagrams dated 5 May 2020 (Exhibit D), of a similar nature to the earlier diagrams, for the winter solstice and the equinoxes, without the shadow impacts of a frangipani tree on ground level of the Applicants' common property, on the basis that the tree is deciduous and would cast little shadow in winter. Both sets of drawings show a limited amount of light passing through the slat fence at the top of the stairs. Mr Denton's drawings also include shadows cast by the bricks surrounding each window, as the window panes are set in slightly from the face of the brick wall.
6. Pasquale Barilla, architectural technician, was engaged by the Respondents to prepare shadow diagrams also showing impacts of the hedge to the Applicants' building, in addition to impacts of other landscape elements, throughout the day at the winter solstice, for four different scenarios: without the hedge; with the existing hedge; with the hedge pruned as proposed by the Applicants; and with the hedge pruned as per the Respondents' 'fallback position'. The diagrams also show impacts of pruning on privacy, a matter discussed further below.
7. Mr Barilla's diagrams show a solid shadow cast by the fence at the top of the stairs. Mr Barilla did not include the Frangipani's shadow in his principal diagrams, but included three additional diagrams showing the tree's shadow at 10am in March, June and September. He concluded that this tree would have little shading impact in March and September. Mr Barilla's diagrams include the shadow impact of mature trees growing within the front setback of the Applicants' property, while Mr Denton's diagrams do not. Mr Barilla did not include shadows cast by bricks around each window.
8. Due to differences in assumptions described above, Mr Denton's and Mr Barilla's diagrams vary slightly in their outcomes, but to a considerable extent show remarkably similar impacts of the hedge at the winter solstice. The hedge partially obstructs sunlight to Unit 1's bedroom windows W2 and W3 for 1-2 hours in the morning, fully obstructs sunlight to W3, W4 and W5 for an hour in the afternoon, and partially or fully obstructs sunlight to W4 and W5 for 2-3 hours in the morning. Additionally, Mr Denton's diagrams show a partial obstruction to W1 for an hour in the morning, and Mr Barilla's diagrams show a further two hours of almost full obstruction to W5 in the afternoon. This summary indicates that the hedge causes some additional obstruction of sunlight, beyond other landscape elements and built structures, to Unit 1's windows at the winter solstice. It also indicates that there are times of the day where the hedge has no impact on Unit 1's direct sunlight access at the winter solstice.
9. At the equinoxes, Mr Denton's diagrams show the hedge causing partial to full sunlight obstruction to all five windows for two hours in the afternoon.
10. I find the impacts described above constitute a 'severe obstruction' of sunlight to Unit 1's windows. Although the shadow diagrams show that there are more times of the day at the winter solstice when the hedge is not causing greater obstruction to Unit 1's windows than would otherwise exist, this is because there are few times of the mid-winter day when the windows are not already obstructed by other landscape elements and built form.
11. I accept Mr To's arguments that 'sunlight' in the Trees Act means direct sunlight and that the Court has set a high bar when determining if an obstruction is 'severe', as per Bagley v Guthrie [2012] NSWLEC 1252 at [30]. I do not accept his contention that the Court's decision in Flynn v Aththas [2017] NSWLEC 1685 ('Flynn') leads to the conclusion that obstruction of sunlight cannot be 'severe' where the majority of the obstruction is caused by a structure rather than the trees. Commissioner Fakes described at [21] in Flynn that the relevant windows were west-facing and therefore only able to receive afternoon sun in winter, at which time sunlight was restricted by a wall of a dwelling, another dwelling, a pergola and distant trees. Each case must be assessed on its own merits. In Flynn it seems that, even without other obstructions, the windows would receive little winter sun because they faced west. Here, were it not for other obstructions, the windows of Unit 1 might receive considerable winter sunlight, as the windows of the units above do.
12. During the hearing Mr To described Unit 1 as 'subterranean', perhaps relying on the town planning report of Jillian Sneyd, a planning consultant engaged by the Respondents. On page 15 of her report (Exhibit 3) Ms Sneyd wrote: "The ground level at the rear of [the applicants' street address] has been excavated and is located approximately 2.4m below natural ground level. This is the result of the fall of [the property] to the south and the existing residential flat building being developed to achieve a lower ground level. Unit 1 is compromised by virtue of the subterranean design to limited solar access."
13. This seems somewhat misleading. Unit 1 is not subterranean. The land here falls away generally to the southwest, falling both toward a bay in the harbour directly to the west, and toward another bay directly to the south. The rear of the Applicants' property is lower than the respondents' higher land to the north. While part of the land was likely excavated to create the step down between the front 'ground level' and the rear 'lower ground level' of the property, the rear part of Unit 1 opens onto the outdoor living area at the south-western part of the property, at the same level as the unit's floor level. This outdoor living area is not "located approximately 2.4m below natural ground level", but is a levelled area that is above properties further to the southwest and, for at least one part of it, must be at natural ground level. A retaining wall along the common boundary, with a paling fence above, separates the Applicants' property from the Respondents'. At the rear of Unit 1, where the boundary is approximately 4 metres from the wall of Unit 1, the retaining wall appears to be little more than a metre tall and supports the Respondents' land. The 4-metre wide open space between Unit 1 and the boundary is at the same level as the rear open space.
14. I do not find that Unit 1 is compromised by being subterranean, but I do accept that, due to its low level in a built-up environment, with its north-facing bedroom and laundry windows facing uphill, its access to mid-winter sunlight is limited. Perhaps rather than excusing further obstruction of sunlight, this situation heightens the importance of maintaining whatever sunlight access remains. As Ms Hammond suggested, the additional contribution of the hedge pushes the obstruction impact to 'severe'.
15. It is not uncommon for parties or their experts to refer to the relevant Development Control Plan when assessing reasonable access to sunlight. Ms Sneyd has considered the Manly Development Control Plan 2013 ('the Manly DCP'). On page 19 of her report Ms Sneyd explains that Manly DCP's controls "…provide for the consideration of the impact of a development upon overshadowing. The provisions of Manly DCP do not require assessment of vegetation within the shadow analysis. The impacts of building are assessed."
16. While the Manly DCP might provide some useful guidance for assessing the severity of sunlight obstruction, it applies to buildings, not to trees. In most areas, a property owner can plant a tree that will grow to any height on their property, despite restrictions on their building height and setback, fence heights and other elements on their land. It was available to the legislative drafters of the Trees Act to include height restrictions for hedges when drafting the 2010 addition of Part 2A, but they did not. Nor did they nominate the number of hours per day during which sunlight must be obstructed before it might be a 'severe' obstruction. They simply required that, before determining an application under Part 2A, the Court is to consider, amongst other things, "…the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost". It is left to the Court to determine, having considered this issue, whether the obstruction is severe or not. Although the Court is to consider the number of hours per day of lost sunlight, this is generally a qualitative approach rather than a quantitative one. References in planning controls to the number of hours a window should receive sunlight might be a useful guide, but the Court is not required to limit itself to those numbers in determining whether the obstruction is severe.
17. Having considered the very limited amount of mid-winter sunlight available to the windows of Unit 1, and the almost complete removal of that sunlight by the hedge, I find that the trees in the hedge are severely obstructing sunlight to Unit 1's windows.

2020/97792 application - Unit 3

1. The Respondents concede that the hedge might cause a severe obstruction of sunlight to Unit 3's windows, but do not think the obstruction justifies orders for pruning the hedge.
2. Unit 3 is directly above Unit 1 and repeats its layout, so again W1-W4 are the windows to the two bedrooms, and W5 is the laundry window. Mr Denton's and Mr Barilla's diagrams again show similar impacts of the hedge at the winter solstice. The hedge partially or fully obstructs sunlight to the four bedroom windows from 11:00 am onwards, apart from an hour in the afternoon at W1 and W2 when the hedge causes no additional obstruction beyond other landscape elements or built form. The hedge partially or fully obstructs sunlight to the laundry window for an hour in the morning and then all afternoon from 1:00 pm onwards. This summary shows the hedge causes more extensive impacts to Unit 3's direct sunlight access than to Unit 1's sunlight access. This is enabled by Unit 3's greater access to sunlight, being a level above Unit 1, but the hedge takes away most of the available mid-winter sunlight to these windows.
3. Having considered the number of hours of winter sunlight obstructed by the trees, I find they cause a severe obstruction of sunlight to Unit 3's windows.

Should orders be made to address the sunlight obstruction?

1. Trees in the hedge severely obstruct sunlight to windows in both Unit 1 and Unit 3. The Court can therefore make orders in each application if the interests of the Applicants outweigh reasons against interfering with the trees (s 14E(2)(b)). Many of the relevant matters to be considered at s 14F before making any orders are consistent between the two applications and can be explored just the once - the environmental and social benefits of the trees, for instance. Other issues are particular to each application and must be considered separately for each.

The location of the trees

1. The trees are planted within the Respondents' property, along and close to the common boundary. Their foliage extends across the common boundary. They form a tall dense screen along the common boundary, approximately 4 metres from the Applicants' windows.

The trees were planted after construction of the Applicants' building

1. According to Anne Pfeiffer (Exhibit E), the owner of another unit in the Applicants' building, their building was constructed in or about 1969 and the hedge was planted about 2005.

Height of the trees when the Applicants owned or occupied their dwellings

1. Included in the matters that the Court must consider is, at s 14F(c): "…whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land". There is no further explanation of how this might be considered. Based on background material, including the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the 2009 Review'), the Court has consistently taken the approach in Part 2A applications that the applicants themselves must have lost access to sunlight or views they previously enjoyed during their ownership or occupation of their property: Bowden v Grayson [2013] NSWLEC 1161 at [54]-[55]; Zhang v Davidson [2020] NSWLEC 1030 at [12]; Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150 at [49]. Despite the wording of s 14F(c), the Court can make orders even where trees were already more than 2.5 metres tall when an applicant came to their property, but the Court considers whether an obstruction to sunlight or a view has arisen or increased during the period of their ownership or occupation. The parties in these matters disagree on this issue.

2020/40604 application - Unit 1

1. The Unit 1 Applicants purchased their property in 2007, at which time they say the trees were approximately 2 metres tall. Anne Pfeiffer, owner of Unit 4 in the Applicants' building, has known the building since its 1969 construction, when her grandparents bought that unit, and she has lived there since 2001. Ms Pfeiffer's affidavit of 5 May 2020 (Exhibit E) includes her knowledge of the history of the hedge and negotiations around its height with its current and former owners. She recalls negotiations with the former owners to prune the hedge to a height of 2.5 metres from the base of the fence (that is, roughly 2.5 metres above the top of the planter boxes holding the trees) and thinks that such pruning was first carried out in 2007. Despite pruning at regular intervals, she recalls the hedge was approximately 1.5-2 metres above the top of the paling fence in 2010.
2. The Respondents dispute the history of the hedge's height. In his affidavit (Exhibit 1) Mr Elworthy includes photographs sourced from a popular real estate website. At paragraph 49 he describes the photographs "…that appear to be marked and date stamped taken from the balcony [of Unit] 10 [street address deleted] in June 2007, Sep 2013 and Sep 2019." The photos are annexed to his statement as 'ZA', 'ZB' and 'ZC'. I can see no date stamps on those photos. The photos show a significant increase in the size of trees in the hedge over the period in which they were taken. In 'ZA', the trees' tops appear to be up to 2 metres above the fence. (By my estimation this is slightly above the height proposed by the Applicants.) Their tops are thin, and the trees do not yet provide a dense screen to the boundary. The suburban landscape and the harbour can be seen above the trees, with distant hills in the background. In 'ZB' the trees are taller and provide a denser screen. The suburban landscape can no longer be seen, the harbour view is reduced and the distant mountains remain. In 'ZC' the harbour view is reduced to the left of the hedge and the hedge obscures most of the distant hills. It is a tall dense screen. Impacts on views are not part of this application, but the description above shows that the trees have increased significantly in size since the earliest photo.
3. In her affidavit of 19 May 2020 (Exhibit 4), Catherine van Veenendaal, a previous owner of the Respondents' property, includes the first two photos described above ('ZA' and 'ZB'). She states that she "…thinks they capture the relative heights of the hedge in 2007 and 2013" while she owned the property, being 4.6 metres and 6 metres tall, respectively. In 2013 she got gardeners to prune the trees to a height of 4.6 metres, or "…just under the windows in the master bedroom". Mr Barilla's privacy-impact diagrams show the current hedge height is above the sill of the Respondents' master bedroom. Ms van Veenendaal's description above of hedge height after the 2013 pruning is closer to that of the Respondents' 'fallback proposal'.
4. Mr Elworthy also included aerial photographs taken between 2013 and 2017. I accept that these show the hedge has been maintained at a reasonably consistent height for several years.
5. I conclude from the above that the hedge was significantly smaller in 2007 and that the Unit 1 Applicants have lost access to sunlight that was available when they purchased. Hedge height proposed by the Applicants appears to be slightly lower than its 2007 height, but it was also less dense at its top at that time and it did not reach across the boundary. Referring to the diagrams of Mr Barilla and Mr Denton, shadow cast in 2007 was likely to be closer to that shown in the diagrams for the Applicants' proposed hedge height than in the diagrams for its current height.

2020/97792 application - Unit 3

1. According to the Unit 3 Applicants, they purchased their property in 2013, at which time the trees were approximately 2 metres tall.
2. Based on the photographs in Mr Elworthy's statement, described above, and descriptions of the hedge over time in the statements of Ms Pfeiffer and Ms van Veenendaal, I find that in 2013 the hedge was significantly more than 2 metres tall and was likely to be close to the height in the Respondents' alternative orders: RL 45.0 for the front section and RL 43.8 in the middle section.

Consent would not be required to interfere with the trees

1. The Manly DCP's list of exempt tree species (species that may be removed without consent) includes all cypress species: Cupressus species, Cupressocyparis species and Chamaecyparis species. According to the Applicants, trees in the hedge are Leighton Green Cypress (Cupressus x leylandii 'Leighton Green'). No consent is required from Northern Beaches Council to prune or remove the trees. Consent to interfere with the trees is not required under any other Acts.
2. The presence of the hedge was noted on plans within an earlier Development Application on the Respondents' property. According to Ms Sneyd (Exhibit 3, p 10), an assessment report for that application noted that the "…established boundary hedging provides a supplementary privacy measure between the proposed works and the adjoining properties." However, there is no evidence that the hedge was a condition of any development consent, or that conditions were made for maintaining it at a specified height.

The benefits and value of the trees

1. The trees do not have any particular historical, cultural, social or scientific value. Like all trees, they contribute to canopy cover of the area, although as a trimmed hedge their canopy cover is limited. They provide some cooling and shade. The trees are not native species and make no notable contribution to the ecosystem or to biodiversity. There is no evidence that they have any impact on soil stability, the water table, or other natural features of the land.
2. The hedge is a significant part of the Respondents' landscape, providing a green barrier along their side boundary. It is in character with, and enhances the value of, their garden and property generally. Beyond the two properties that share this boundary, the trees provide little value, and no significant contribution to public amenity.

The impact pruning would have on the trees

1. Ms Sneyd describes the hedge (Exhibit 3, p 6) as being in three sections, with trees in the front section (closest to the street) being 5.4-7.0 metres tall, trees in the middle section being 5.4-6.2 metres tall, and trees in the shorter rear section being 2.3-2.4 metres tall. The top of each section of the hedge is horizontal, with the height range within each section a result of the land falling toward the rear of the Respondents' property. The RL levels for each section are, from front to rear, 45.6, 44.4 and 41.3.
2. The orders in both applications seek pruning of the trees to a height of 2.7 metres above ground level, by which they appear to intend 2.7 metres above the soil level in the Respondents' planter boxes in which the trees grow. The diagrams of Mr Denton and Mr Barilla show the front section of the hedge if pruned as proposed by the Applicants at an RL of 42.93 and the middle and rear sections with an RL of 41.40. Trees in the front section would be reduced by ~2.7 metres, leaving them 2.7-4.3 metres tall. Trees in the middle section would be reduce by ~3.0 metres, leaving them 2.4-3.2 metres tall. Trees in the rear section would not need reducing.
3. Mark Elworthy (the Second Respondent in both matters) included in his affidavit a statement from Lyndall Keating, Director of 'Garden Society' (a garden design and maintenance business), stating that the "…conifer hedge will not grow back from such a vigorous pruning from mature growth." It is not clear to what extent of pruning she was referring. She does not state her assumptions or the grounds for her opinion. Her comments appear to be general in nature, rather than responding to a given extent of pruning proposed to these trees, and they do not assist the Court.
4. The trees are likely to be temporarily impacted by the Applicants' proposed pruning. Along the top of the hedge, large woody branches with cuts would be exposed and would remain so for some time until new growth covers them. Eventually, with proper maintenance, the hedge would recover its current appearance, albeit at a shorter height.
5. The Respondents' alternative orders would reduce trees in the front section to 4.8-6.4 metres tall (a reduction of 600 mm to RL 45.0) and trees in the middle section to 4.8-5.6 metres tall (a reduction of 600 mm to RL 43.8). The impacts of this pruning would be minimal. Although woody branches would be exposed at the top of the hedge, they would be relatively small and would be covered by new growth with a short timeframe.
6. Ms Hammond, Counsel for the Applicants, took the Court to two earlier decisions in which orders were made to significantly reduce the heights of Leyland Cypress trees, from approximately 7.8 metres tall to 4.2 metres in Beath v Whyman [2011] NSWLEC 1272, and from approximately 5.8 metres tall to 4.2 metres tall in Johnson v Shadbolt [2014] NSWLEC 1008. I accept that the trees in this matter will recover from the extent of pruning in either the Applicants' or the Respondents' proposal.
7. In either proposed scenario, once the trees recover from the initial pruning, they could be effectively maintained at the proposed height.

Privacy

1. The primary reason for the Respondents wishing to maintain their hedge as it now stands, or with only a small reduction in its height, is the privacy it affords by providing a screen between their dwelling and the neighbouring apartment building. The Court is required to consider impacts to privacy at s 14F(l): "…any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated".
2. Privacy for the Applicants in each matter is not a significant issue. The orders sought in each matter are identical, and so would have the same impacts on privacy. Therefore, the issue of privacy does not require separate consideration in each matter.
3. Uppermost in the Respondents' evidence and submissions is the impact that pruning the hedge would have on their own privacy. However, they also submitted that pruning would have impacts on privacy for residents within the Applicants' building. To this end, they have gathered statements from some of those residents.
4. On my reading of s 14F(l) of the Trees Act, the phrase "of the land on which they are situated" applies only to "amenity", which immediately precedes that phrase, and not to other matters listed here including privacy, landscaping, protection from sun, wind, noise, smells or smoke, and so on. That is, the trees' contribution to anybody's privacy can be considered.
5. The Respondents filed two statements from other residents in the Applicants' building. Peter Charnock of Unit 11 (Exhibit 6) and Stuart Smith of Unit 6 (Exhibit 7) each expressed their appreciation of both the privacy and the amenity provided by the hedge. Mr Charnock appreciates that the hedge prevents he and his partner seeing into the Respondents' property. Mr Smith stated that, if the hedge was not there, he would be able to see into the Respondents' dwelling, and vice versa.
6. The owner of Mr Smith's unit, Paul Jones, also made a statement, filed by the Applicants. Mr Jones and his wife have owned Unit 6 since 2003, before the hedge was planted next door. He opined that the hedge has grown to block sunshine and light to the unit's rooms. He supports the pruning proposed in both applications.
7. In his own statement, Mark Elworthy (the Second Respondent in both matters) included a record of a conversation suggesting that Sara Mellor, the tenant of Unit 10 in the Applicants' building, wants the hedge maintained at its existing height for privacy reasons. In her own statement (Exhibit K) Ms Mellor refutes Mr Elworthy's version of the conversation, stating that it does not reflect her opinions regarding the hedge. She says she referred to the 'family downstairs' in their conversation "…in an attempt to finish up the conversation and to make it clear to him that I did not wish to get involved but that I did care about the wellbeing of the family downstairs, compared to me losing my privacy."
8. Pruning the hedge, then, is favoured by some occupants in the Applicants' building but not by others. Considering the mix of negative and positive reactions to the proposal, in this decision I give little weight to the impacts on privacy for residents in the Applicants' building.
9. The Respondents submitted that their own privacy would be significantly affected by the Applicants' proposed pruning. At paragraph 52 of Mr Elworthy's statement (Exhibit 1), he is concerned that the design of their house results in the neighbouring units overlooking the Respondents' living and dining rooms where they spend time as a family. He is also concerned that the units overlook their backyard where the Respondents' children play. They rely on the hedge to prevent or restrict this overlooking.
10. Mr Barilla's report includes diagrammatic representation of the sightlines from the Respondents' dwelling with the hedge at its existing height, at the Applicants' proposed height, and at their own proposed alternative height.
11. The existing hedge provides a screen between the Respondents' first-floor windows and the balconies and windows of the lower ground, ground, and first floor of the Applicants' building, but does not screen the top floor of the Applicants' building from the Respondents' first floor. From the same windows, the pruning proposed by the Applicants would remove screening to the ground and first floor windows of the Applicants' building.
12. From the Respondents' ground floor living room, the existing hedge screens windows and balconies on all levels of the Applicants' building. Pruning to the Applicants' proposed orders would remove screening from here to the upper two levels of the Applicants' building.
13. The Respondents' proposed pruning would maintain all of the hedge's screening from their ground floor living room, while removing some of the screening benefits between their first floor and the first floor of the Applicants' building.
14. Considering these impacts, I accept that the Respondents' sense of privacy would be affected by the Applicants' proposed pruning, and significantly so. This is no minor issue, so it deserves further analysis.
15. On their first floor, the Respondents' master bedroom does not have privacy now. Its windows and balcony face the neighbouring units, with a direct line of sight to the windows of units on the upper floor. Pruning the hedge would not create an overlooking issue for the Respondents here, but rather would magnify an existing one. The Respondents' proposed alternative would add some overlooking from the first-floor windows of the Applicants' building; the Applicants' proposed pruning would further add some overlooking from the ground floor unit windows.
16. I am not satisfied that the Respondents' preference for maintaining the existing hedge height, or their alternative minor height reduction, outweighs the loss of sunlight caused to the Applicants by the hedge. Firstly, as noted above, the Applicants' proposed pruning would only magnify an existing overlooking issue to the Respondents' first floor, rather than creating an issue where one does not currently exist. Secondly, at the time the Respondents' dwelling was renovated, choices were made regarding the siting of living areas, their window locations and outlook, and other relevant design elements, all with the knowledge of the neighbouring built form and its windows and balconies. Screening options closer to the Respondents' windows, either built or vegetative, might have been considered. Curtains may provide privacy when needed but allow light to enter at other times.
17. Sunlight issues for the Applicants result partly from the position (especially for Unit 1), aspect and design of their building, but are magnified by the neighbours' hedge, an element potentially beyond their control. On the other hand, privacy issues for the Respondents partly result from the proximity of dwellings in this developed suburb, but were augmented by choices made when their dwelling was renovated. The Respondents have options other than the hedge to maintain some privacy, whereas the Applicants have no means of restoring sunlight obstructed by the hedge.

Other factors contributing to sunlight obstruction

1. Buildings and other landscape elements contribute to the sunlight obstruction at the Applicants' windows. These include the Respondents' dwelling, the fence on the common boundary, other plants in the Applicants' property, the fence in the Applicants' side setback, and even the bricks surrounding the Applicants' windows. The additional obstruction caused by the hedge is shown in shadow diagrams. I have considered the contribution of those other elements above and determined that the hedge's contribution to sunlight obstruction is severe for the Applicants in both matters.

Steps taken by the Applicants or the Respondents

1. The Applicants cannot reduce the hedge's height without the Respondents' consent. Ms Pfeiffer, as a representative of the Applicants' Owners Corporation, communicated with the Respondents as well as with previous owners of their property over many years, negotiating pruning and maintenance of the hedge.
2. The Applicants obtained detailed shadow diagrams to assist with the analysis of the hedge's impacts. Mr To submitted that Mr Denton has not quantified the amount of sunlight lost, even though the applicants bear the evidentiary onus. However, I find that the shadow diagrams speak for themselves, clearly demonstrating the amount and extent of sunlight lost.

The Unit 1 Applicants

1. Since June 2019, when the Unit 1 Applicants first emailed Mr Elworthy regarding sunlight issues, they have made several efforts in conversation and other correspondence but have been unable to reach agreement on a suitable height for the hedge.

The Unit 3 Applicants

1. The Unit 3 Applicants met with the Respondents twice in late February 2020. They discussed the hedge and pruning options, and viewed shadow diagrams. Their solicitor wrote to the Respondents in early March seeking a proposal for pruning and maintaining the hedge, hoping for a proposal to which they might agree. Later in March, after receiving the Respondents' proposal, they found it unsatisfactory and a week later filed their application with the Court.

The Respondents

1. The Respondents have owned their property since October 2016. Since then, they have discussed the hedge with their neighbours, usually through Ms Pfeiffer. In April 2017 they reduced the hedge's height by approximately one metre, and have maintained it with regular pruning since then. When negotiating with the Applicants since 2019, they engaged Mr Barilla to prepare extensive shadow diagrams showing the hedge and the impacts of various pruning options. The Respondents have also sought the views of other occupants within the Applicants' building. The Respondents have taken reasonable steps to maintain the hedge while protecting the privacy they value.
2. In her affidavit of 5 May 2020 (Exhibit E) Ms Pfeiffer stated at paragraph 19 that the Respondents pruned the hedge in March 2018, removing a small amount from the top but not pruning the face of the hedge facing the Applicants' building. She supported this statement with photographs in a second affidavit dated 26 May 2020 (Exhibit H). While a hedge's growth can create onerous maintenance for its neighbours, there is generally no legal obligation on the hedge owner to maintain the overhanging parts of the hedge, unless, in the absence of the Trees Act, some claim of nuisance is successful.
3. Ms Pfeiffer also referred to an agreed pruning height marked with a tie in the hedge (Exhibit E, paragraphs 20, 21). Mr Elworthy disputes that any such tie marked an agreed height. There is no evidence of any written agreement. The Respondents have pruned the hedge. There has been no legal requirement for them to do anything more.

The Unit 1 Applicants

1. At mid-winter, due to other obstructions, Unit 1 receives partial sunlight to windows for an hour or two in the morning, and unobstructed sunlight to some windows for one hour in the afternoon. The hedge obstructs almost all of this limited availability to mid-winter sunlight.

The Unit 3 Applicants

1. Unit 3, being above Unit 1, has far greater access to mid-winter sunlight, with only two windows significantly obstructed for an hour or two in the afternoon. The hedge removes most of that available sunlight, leaving all windows with two hours of unobstructed sunlight in the early morning and some with an hour of afternoon sunlight.

Whether the trees lose their leaves

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

Parts of the dwellings affected by sunlight obstruction

1. Both Unit 1 and Unit 3 have identical layouts. Each has five windows across three rooms affected by the hedge: two bedrooms each with two windows, and a laundry. The apartments are not large. Bedrooms provide space for use beyond sleeping: for instance, areas for families to spread out, study areas for children's homework, and home offices. Time spent at home often increases in winter. COVID-19 has increased the time spent working at home for many people.
2. Mr Fallows, the First Applicant in the Unit 3 Application, stated in his affidavit of 5 May 2020 (Exhibit F) that one bedroom is occupied by their two daughters, who use it a lot for recreational activities. He shares the other bedroom with his wife. He has a desk in the bedroom and works from home. Mr Fallows explained that the laundry adjoins their kitchen. As only these north-facing windows receive winter sunlight, the laundry assists with light and amenity in the kitchen.
3. I find that the obstruction of sunlight to these windows in each apartment could significantly affect the occupants' potential to enjoy their property.

Other relevant matters

1. Within the extensive material filed by the parties, many matters are raised. Some of these are of little relevance to the Court's jurisdiction and to this decision. I have addressed relevant matters above. The Unit 1 Applicants raised the issue of mould growing inside some of their rooms. They say the lack of sunlight contributes to the problem. In affidavits mentioned throughout this judgment, others have offered their own opinions on whether or not the mould is caused by a lack of sunlight or some other factor. There is no evidence to demonstrate that the hedge has contributed to mould in the apartment; nor is there evidence to show that pruning the hedge will improve the problem, so I have not considered the issue of mould in this decision.
2. I have also mentioned above that there is generally no legal obligation for a hedge owner to prune that part of a hedge that overhangs the boundary. The 2009 Review preceded the 2010 addition of Part 2A to the Trees Act. On page 38 of the 2009 Review, hedges of Leighton Green Cypress were discussed: "A large number of submissions expressed concern about a specific kind of tree, the Leyland Cypress, also known as a Leighton Green. These are fast growing evergreens, which can grow over 30 metres high and 4m wide. Submissions commonly argued that due to the density and height of its growth, the species is not suitable for planting in residential or rural areas, particularly when it is planted in a hedge formation."
3. On page 39 it continued: "Many submissions requested specific measures against this species, including banning (by various means) its sale in NSW. The most common request was for the species to be banned by being declared a noxious weed."
4. Regarding this issue, the 2009 Review concluded on page 39: "Similarly, it would not be appropriate for this review to recommend prohibition of a particular species of tree. The purpose of the Act is to allow resolution of disputes about trees causing certain kinds of problem, rather than to regulate the planting of certain species, or their location relative to a boundary, pipes or electricity lines. Even if the Leyland Cypress were completely banned, similar kinds of neighbourhood concerns would continue to arise from other kinds of tall, dense trees and hedges. Accordingly, it is more appropriate to address the problem caused by the tree and others like it than to take measures against one particular species."
5. While Leyland Cypress, or similar trees, are often found to be problematic due to the tall dense screens they can create along boundaries, they can also cause onerous maintenance tasks for those living next door. Few people take the prudent approach at planting time of leaving room between the trees and the boundary to allow the hedge owners access for its maintenance. Rather, they plant along the boundary, often relying on their neighbours to maintain the face of the hedge that its owners can no longer see or access. If there is some mutual benefit from the hedge to the neighbours, they might willingly accept this maintenance task. Where there is not mutual benefit, and perhaps the neighbours even resent the hedge when they find their sunlight or views obstructed, they are lumped with a task that can become extremely onerous. Once a Leyland Cypress (or similar) hedge grows beyond reach, it requires ladders, extendable hedging shears, possibly scissor lifts or similar, and perhaps the skills of experienced professionals to maintain it at regular intervals.
6. The common law right to prune overhanging branches to the boundary (subject of course to any local government or other consent that might be required) extends to branches and foliage of hedges. But unlike the occasional need to prune an overhanging tree branch that might cause a nuisance of some sort, the planting of a boundary hedge can create regular, onerous and uninvited work for a neighbour.
7. The Court's jurisdiction to make orders within Part 2A of the Trees Act are limited at s 14D(1): 14D Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of: (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) any view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees that are the subject of the application concerned. (2) … (3) …
8. Orders sought within Part 2A applications often refer only to the hedge's height. Foliage on the upper part of the side of a hedge facing an applicant might grow laterally toward their dwelling, increasing the sunlight obstruction. For this reason, depending on the particular circumstances in the matter, it may be appropriate in matters heard under Part 2A of the Trees Act to make orders for the hedge owner to maintain the face of the hedge facing their neighbours, in addition to any other maintenance ordered. In such a situation it would not be practical to only make orders for pruning the top half of one side of the hedge, leaving the lower section unpruned, so orders might be made to prune the entire side facing the applicants.
9. In this matter, the Applicants propose that the hedge be pruned every six months. In their alternative orders the Respondents propose annual pruning. The hedge does not obstruct sunlight to the Applicants' windows throughout summer. After an initial prune during late 2020, pruning the hedge annually by the autumn equinox or thereabouts should prevent any significant sunlight obstruction to the Applicants' windows throughout winter. The initial pruning should be 200 mm or so below the ongoing pruning height to allow foliage to develop at the top of the hedge.

Who should pay for pruning?

1. In Drewett v Best [2010] NSWLEC 1305, orders were made at [29] for the applicants to pay for half of the cost of the initial instance of pruning a hedge, with the respondents to bear the full cost of its ongoing maintenance, on the basis that "…as the benefit goes to the applicant, the applicant should contribute to the cost of the initial pruning" (at [28]). In the matter before me, the Respondents have proposed in their alternative orders the same method for sharing the cost of the first pruning. The Applicants in both matters, on the other hand, propose that the Respondents pay for pruning the hedge in the first instance, and for its ongoing maintenance.
2. It is likely in matters under both Part 2 and Part 2A of the Trees Act that the benefit of any orders will usually favour the applicants. Afterall, there is usually some issue adversely affecting them that has prompted them to apply for orders. It is also usual that the respondent, or the tree owner, pays for works to their tree. In Part 2 matters, the respondent might also have to pay for some or all of the cost of repairing damage to an applicant's property. The exception to the usual orders for a respondent to pay for works to their own trees might arise when an applicant's own actions have contributed to the need for works, such as occurred in Joaquim v Adamson [2009] NSWLEC 1312. In the matter before me, the Applicants have not contributed to the issue through their own actions, so I see no reason for them to pay for any pruning works.

2020/40604 application - Unit 1

1. With the assistance of shadow diagrams, and having considered the sunlight obstruction caused by things other than the hedge, I find that the trees forming a hedge on the Respondents' property, along the common boundary with the neighbouring property, severely obstruct sunlight to the windows of the dwelling belonging to the Unit 1 Applicants. Apart from reducing the hedge's height, there are no practical options for increasing sunlight access to Unit 1.
2. The hedge provides screening for privacy that is important to the Respondents. Pruning the hedge will negatively impact their privacy, especially to their ground floor living areas, to a degree that depends on the extent of the pruning. Other options are available to the Respondents to mitigate those impacts on their privacy.
3. The benefits to the Unit 1 Applicants of additional sunlight access gained by pruning the trees outweigh the reasons for leaving the hedge as it is.
4. At the time the Unit 1 Applicants purchased their property, the trees most likely obstructed a similar amount of sunlight as they would if pruned according to the Applicants' proposed orders. It is reasonable to restore that extent of sunlight access by pruning as proposed by the Applicants.
5. The hedge is in three sections. Orders will be made to prune the front and middle sections only, as the rear section has no significant impact on the Applicants' windows. Foliage that grows across the boundary, especially in the upper section of the hedge, will potentially obstruct sunlight to the Applicants' windows, so orders will include pruning of the side of the hedge facing the Applicants. After initially pruning slightly below the desired height in late 2020, pruning is to occur at the specified height annually before winter.
6. The Respondents will pay the cost of all pruning ordered below.

2020/97792 application - Unit 3

1. Trees in the hedge severely obstruct sunlight to windows of the Unit 3 Applicants' dwelling during winter. Pruning the hedge could prevent the trees obstructing sunlight to the Unit 3 Applicants throughout winter. Although the hedge provides privacy valued by the Respondents, this is outweighed by the benefits that pruning would provide to the Unit 3 Applicants, who have no other way of restoring their sunlight.
2. When the Unit 3 Applicants purchased their property, trees in the hedge most likely obstructed a similar amount of sunlight as they would if pruned according to the Respondents' alternative orders. It would be reasonable to restore that extent of sunlight access. This pruning would be at a greater height than will be ordered in the Unit 1 matter, and would be done at the same frequency as the orders in the Unit 1 matter, also at the Respondents' expense. As a result, while the Unit 1 orders remain live, orders in the Unit 3 matter are redundant. Carrying out the Unit 1 orders satisfies the orders in both matters. However, should circumstances change in any way such that orders in the Unit 1 matter are no longer live, orders might still be needed in the Unit 3 matter, so they will be made here in a similar manner to the Unit 1 orders apart from height.

Proceedings 2020/40604

1. As a result of the foregoing, the orders of the Court are: 1. The application is granted. 2. Within 30 days of the date of these Orders, the Respondents are to engage and pay for a suitably qualified contractor to prune the 29 Leighton Green Cypress trees forming a hedge ('the hedge') along their south-eastern boundary so that: 1. the hedge is no higher than RL42.8 for 15.59 metres from its north-eastern end ('Section 1') and RL41.2 for the remainder of its length ('Section 2'); and 2. the face of the hedge on the Applicants' side is pruned to the boundary. 1. The Respondents are to engage and pay for a suitably qualified contractor to prune the hedge during March-April each year, beginning March-April 2021, so that: 1. the hedge is no higher than RL43.0 for Section 1 and RL41.4 for Section 2, approximately in accordance with Drawing AD-DA303 dated 18 May 2020 prepared by Pasquale Michael Barilla; and 2. the face of the hedge on the Applicants' side is pruned to the boundary. 1. On reasonable notice, the Applicants must arrange all access required to their common property for the Respondents' contractors to carry out the works ordered above. 2. The exhibits are returned, except for A and B.

Proceedings 2020/97792

1. As a result of the foregoing, the orders of the Court are: 1. The application is granted. 2. Within 30 days of the date of these Orders, the Respondents are to engage and pay for a suitably qualified contractor to prune the 29 Leighton Green Cypress trees forming a hedge ('the hedge') along their south-eastern boundary so that: 1. the hedge is no higher than RL44.8 for 15.59 metres from its north-eastern end ('Section 1') and RL43.6 for the remainder of its length ('Section 2'); and 2. the face of the hedge on the Applicants' side is pruned to the boundary. 1. The Respondents are to engage and pay for a suitably qualified contractor to prune the hedge during March-April each year, beginning March-April 2021, so that: 1. the hedge is no higher than RL45.0 for Section 1 and RL43.8 for Section 2, in accordance with Drawing AD-DA320 dated 18 May 2020 prepared by Pasquale Michael Barilla; and 2. the face of the hedge on the Applicants' side is pruned to the boundary. 1. On reasonable notice, the Applicants must arrange all access required to their common property for the Respondents' contractors to carry out the works ordered above. 2. 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: 30 September 2020