Land and Environment Court New South Wales Medium Neutral Citation: Demkin v Koster [2022] NSWLEC 1633 Hearing dates: 4 November 2022 Date of orders: 15 November 2022 Decision date: 15 November 2022 Jurisdiction: Class 1 Before: Bish C Decision: The Court orders that: (1) The Pt 2A application is refused. (2) All exhibits are returned. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the applicant made reasonable effort – high hedge – is the obstruction of sunlight severe Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14E, 14F Category: Principal judgment Parties: J Demkin (Applicant) H Koster (First Respondent) C Koster (Second Respondent) Representation: J Demkin (Applicant) (Self-represented) H Koster (First Respondent) (Self-represented) C Koster (Second Respondent) (Self-represented) File Number(s): 2022/238403 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought by Jennifer Demkin (the applicant) against Harry Koster and Christina Koster (the respondents), an adjoining neighbour, pursuant to Pt 2A, s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders to prune trees that form a hedge, north of her common boundary. 2. The applicant seeks for the respondent to prune and maintain the trees, identified as T1 to T18 in the application, to a height equivalent to the roof of an adjoining neighbours shed which are considered by her to cause a severe obstruction of sunlight to her dwelling. Background and context to the application 1. The applicant purchased the land at 12 Semkin Street, Moss Vale in 1982, and built a house in its current location and design in 1987. The dwelling remains the same since development consent was granted. It is a single storey dwelling with a living area located at the rear of the structure, generally facing north and west. The dwelling is oriented in a north-south direction across the lot, although located closer to the eastern boundary. The applicant identifies an amenity impact from loss of sunlight to windows identified as W1, W2 and W3. In the dwelling, window W1 is identified as a laundry window (north facing), W2 and W3 are windows into the family/dining room (W2 is north facing and W3 is northwest facing). 2. Lots around the applicant's land are vegetated with large trees and lawn grasses. The lots directly to the north of the applicant's land are bounded by well-established trees, including those in dispute. The applicant states that these trees on her northern boundary were planted in 1988/1989 by the former owner/s of these lots. 3. The respondents purchased 9 Rytina Place, Moss Vale around September 2016, and the land is occupied by a single storey dwelling. The western boundary of the respondents' land has, since their residence, a row (with 18 trees) of Cupressus Castlewellan Gold trees (hereafter the 'trees'), that have grown to a height of over 20 m. The respondents rely on these trees at their current height to provide a buffer from strong winds, privacy and wildlife habitat. The hearing 1. The hearing in these proceedings took place onsite. Parties were self-represented and had no relevant experts in attendance. The Court visited both properties to assess the trees in dispute, view the sunlight perspective into windows on the applicants' dwelling between 10 am and 11.30 am on a Spring morning, and to assess the surrounding environment. 2. The applicant provided recent and historical photographs of the trees in dispute, as viewed from her land, and including when they were planted. The application is also supported by a response to questions (in the application) and a history of communication relating to this appeal. The applicant relies on this information to support her claim. 3. The respondent also provided recent and historical photographs of the trees, copies of the applicant's letters of communication relating to the trees and a letter detailing their position. The respondents rely on this information to support their claim. 4. Further to the evidence tendered, I observed the trees in dispute and proximity of the relevant viewpoints including the dwellings, shed and fence. I also rely on my own expertise in making this decision. Has the applicant made a reasonable effort to contact the respondents? 1. Part 2A, ss 14C and 14E(1) of the Trees Act requires the Court to be satisfied, before making any orders, that the applicant has made a reasonable effort to reach agreement with the respondents, as described below. 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. 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. … 1. The evidence validates that the applicant has attempted to discuss the issue of the placement and height of the trees with the respondents, having written to them on numerous occasions, starting on 16 July 2018, and which continued sporadically until the appeal application was lodged. The applicant attempted mediation to resolve the dispute through the Department of Communities and Justice, with an invitation to attend a mediation sent on 23 December 2020, although the offer was not responded to by the respondents, and mediation was abandoned. The applicant then wrote to the respondents on 12 July 2022 to indicate that the appeal application was to be lodged. 2. The respondents have throughout this time continued to dispute the request of the applicant on the grounds that the trees provide a windbreak, privacy and wildlife habitat, generally in verbal discussions with the applicant. 3. The appeal was lodged with the Land and Environment Court (the Court) on 10 August 2022, pursuant to Pt 2A, s 14B of the Trees Act, below, seeking an order to prune the trees in dispute, on the grounds of severe obstruction of sunlight to the applicant's dwelling (s 14B(a)): 14B Application to Court by affected land owner An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (a) sunlight to a window of a dwelling situated on the land, or (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land. 1. I am satisfied that the applicant's efforts to communicate with the respondents were reasonable and comply with the requirements established in Pt 2A, s 14C(1) of the Trees Act, specifically to give (21 days) notice. The applicant has made a reasonable effort to resolve the dispute, initiating communication two years prior to the lodging of the appeal. Trees relevant to the application 1. The application relates to the stand of (Cupressus Castlewellan Gold) trees situated on the land of 9 Rytina Place Moss Vale, along the common (western) boundary fence with 7 Rytina Place, and which adjoins the applicant's land at a 45-degree angle in a central point on the northern boundary. The trees stand effectively as a 'wall' of dense canopy, at a height exceeding 20m. 2. The Court finds that the trees that are in dispute form a 'hedge', pursuant to Pt 2A, s 14A(1)(a), below: 14A Application of Part (1) This Part applies only to groups of 2 or more trees that: (a) are planted (whether in the ground or otherwise) so as to form a hedge, and (b) rise to a height of at least 2.5 metres (above existing ground level). 1. The trees are planted in an orderly row of up to 18 trees, which have grown to over 2.5m in height above existing ground level since planting, pursuant to s 14A(1). Therefore, Pt 2A of the Trees Act is engaged. Severe obstruction 1. Before making an order, the Court is required to assess the requirements of s 14E of the Trees Act. With regards to s 14E(1)(a), the Court has previously indicated an opinion of satisfaction that the applicant has made a reasonable effort to resolve the dispute. 2. With regards to s14E(2), the Court must be satisfied as to the severity of the obstruction of sunlight to a window/s (specifically W1, W2 and/or W3) in the dwelling on the applicants' land at 12 Semkin Street (hereafter the land), as a consequence of any or all of the trees in the hedge located on the respondents' land at 9 Rytina Place (hereafter the adjoining land), pursuant to Pt 2A, s 14E(2)(a)(i) of the Trees Act, below: 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part. 1. The greatest concern when assessing for solar amenity impact relates to windows W2 and W3, which are into the family and dining rooms of the applicant's dwelling, an area the resident would expect to utilise most often. I am less concerned by loss of sunlight to window W1, being a laundry room, as it is not a 'living area' of the house, being used for ancillary purposes. 2. Based on the evidence before the Court and observations made in the site view, I assess that the sunlight as originally obtained to the windows (W1-W3) in the dwelling on the land was likely partially obstructed in the morning/midday/afternoon, prior to the planting of the trees on the adjoining land due to the wide eaves of the dwelling. 3. The sunlight currently obtained in the rear of the dwelling, with the hedge at its current height and location, is still obscured, particularly to windows W1 and W2 during the early to middle of the day, and especially in the winter months when the azimuth (horizontal angle with respect to north) of the sun is lowest because of: the wide eaves on the dwelling; the pergola with a deciduous vine and Perspex cover; and the shed on the applicant's land. These features together would likely cause shade across the rear yard, as well as into the windows at the rear of the dwelling. The azimuth varies based on the seasons and time of the day. During the winter months, the sun's elevation is lower in the sky and generally results in more shadow cast. The winter months would cause the most significant loss of sunlight to the dwelling, an effect observed by the applicant. W3 is a north and west facing window, and likely to receive sun during the afternoon, not affected by the hedge. 4. It is my assessment that together with the orientation of the dwelling windows below wide eaves, proximity of the pergola and shed in the rear yard, and height of trees on other (eastern) properties, this would cause some obstruction of sunlight to the rear of the dwelling. 5. However, I find that the trees in dispute are unlikely to cause a severe obstruction to sunlight in the dwelling. These trees are planted at a 45-degree angle, oriented in a south-west to northeast direction. The sun will track from the east, across a gap in the existing vegetation, where the sun would have opportunity to penetrate windows W1 and W2 during the morning hours, and W3 in the afternoon. Any loss of sunlight to the dwelling from the hedge trees would only be for a brief period of time in the middle of the day, and this impact is not considered severe. 6. In assessment of the extent, position and nature of the sunlight obstruction, I am satisfied it is not severe to windows of the dwelling due to the hedge. I am satisfied that the family/dining room windows are in the same position as in the original dwelling, likely obtained a constrained level of sunlight prior to the growth of the hedge, and that pruning of the trees of the hedge would not return a reasonable degree of sunlight to the dwelling. 7. I am therefore not satisfied that pruning of the hedge, as sought by the applicant, would provide the relief or any significant minimisation of perceived loss of sunlight to the dwelling on the applicant's land. The sunlight was already filtered before the hedge attained its current height and will remain so at the height the applicant seeks the hedge to be pruned to. 8. Further to this, it is my opinion that the pruning of the trees to the height proposed by the applicant could cause a detrimental impact to these trees, potentially causing tree death or risk of failure, as well as resulting in an unnatural shape for these trees, and adverse visual amenity. The cost to maintain these trees at this height would be prohibitive, without the benefit as sought by the applicant. 9. Therefore, Pt 2A, s 14E(2)(a) of the Trees Act is not engaged. There is no requirement for the Court to consider the balancing of interests, by assessment of s 14F, as required by Pt 2A, s 14E(2)(b) to make an order relating to the hedge. Conclusions 1. I am satisfied that the requirements of Pt 2A, s 14E(1) of the Trees Act are met, for the Court to assess the making of an order regarding this appeal application, because the applicant has made reasonable effort to reach an agreement with the respondent, and that the notice period is complied with. 2. Pursuant to s 14E(2)(a) of the Trees Act, I am satisfied that the (trees of the) hedge in dispute does not cause a severe obstruction of sunlight to the dwelling on the applicant's land. An order requiring the pruning of the hedge, as sought by the applicant to address a perceived (severe) sunlight obstruction, does not outweigh disturbance of the trees that form the hedge. 3. Based on the evidence before me and my observations made on the site view, I am satisfied that the trees that form the hedge on the respondents' land at 9 Rytina Place do not require pruning or removal. There is sufficient conclusive evidence provided to satisfy me that the applicant's interest in having the (hedge) obstruction removed, remedied or restrained does not outweigh disturbing or interfering with the trees by making an order, pursuant to Pt 2A, s 14E(2)(b) of the Trees Act. Orders 1. The orders of the Court are as follows: 1. The Pt 2A application is refused. 2. All exhibits are returned. ……………………. Sarah Bish Commissioner of the Court ********** 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: 15 November 2022