Voeten & anor v Adams [2011] NSWLEC 1106

Land and Environment Court New South Wales

Medium Neutral Citation: Voeten & anor v Adams [2011] NSWLEC 1106 Hearing dates: 20 April 2011 Decision date: 12 May 2011 Before: Fakes C; Hewett AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] hedge; obstruction of sunlight Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Mr P Voeten (Applicant) Ms E Lockwood (Applicant)

Mr D Adams (Respondent) Mrs E Adams (Respondent) Representation: Mr A Murrell (Solicitor for the Applicant) Anthony Murrell Solicitors

D & E Adams (Respondents in person) File Number(s): 21069 of 2010

Judgment 1COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mosman against the owners of trees growing on an adjoining property. 2The applicants are seeking the pruning and subsequent maintenance of eight trees on the basis that they severely obstruct sunlight to windows of their dwelling. The trees are growing along the southern side boundary fence of the adjoining property. In their application the applicants sought orders for the trees to be pruned and maintained at 2.5 m height. During the course of the hearing that was changed to prune to 3.5m and maintain at less than 4m. 3The windows are located on the northern side of the applicants' dwelling. W1 is the second window to the west on the northern side of their dwelling. This window is to the dining room portion of a large living room. The living room is partly divided into the two components by a short wall. The eastern portion of this room contains a large bay window on the northeast corner of the dwelling. 4The applicants contend that they lose 80% of the potential light to W1 including 5 hours in winter and autumn. 5W2 is a relatively small bedroom window. There is a skylight in this room. W3 is a small bathroom window, the lower half of which is opaque. The applicants consider that these windows lose 100% of potential light, which is 6 hours in autumn and winter. 6They contend that the shading from the trees has increased their power usage for lighting and heating. They say the ground outside the windows is always in the dark making it hard to landscape effectively. 7The respondents value the trees for their amenity and the privacy they afford, in particular trees 6-8. They contend that they have responded to the applicants' requests to the extent enabled by the Mosman Council Tree Preservation Order. The respondents question the extent to which the applicants lose light to windows, particularly windows of low relative importance such as the bathroom window. The trees and actions of the respondents 8There are eight trees subject to this application. They are numbered on the diagram in the application from east to west. Trees 1,2,3, and 6,7,and 8 are Lillypilly ( Syzygium paniculatum ) and Trees 4 and 5 are Tuckeroo ( Cupaniopsis anacardioides) . 9According to the respondents, the trees were planted approximately 24 years ago. Trees 1-5 are planted in a garden bed that adjoins a side path and then widens into a terraced garden. Trees 6-8 are planted on the southern end of an elevated terraced area and are quite separate to trees 1-5. To this end, we consider it appropriate to consider the two groups as separate hedges. 10The applicants purchased their property from the estate of a family member (the house has been in one of the applicant's families since it was built in 1904; the respondents' property was built in 1898). The applicants state that the trees were about 3 m in height when they moved in. The respondents estimate the trees to have been about 5 m at that time. The tallest trees are now estimated to be about 9 m high. 11According to the applicants, the trees were pruned about 8 years ago but the pruning resulted in thicker regrowth. However, material provided by Mosman Council (the Council) shows a request for the removal of three trees, one Pittosporum and two Syzygium sp, made by the respondents. Permission was granted on 29.11.2006 with a requirement for replanting trees that would attain a minimum height at maturity of 8m. Presumably this work was completed. 12In May 2010 the applicants wrote to the respondents requesting hedging of the trees because of loss of sunlight to windows and their clothesline (at the rear of their dwelling). They also state 'As the foliage is high, we have no privacy at the fence height where the thick trunks are pushing over the common fence. The excessive shade and neglect is no longer tolerable. We suggest the trees be pruned to fence height, with annual maintenance to a reasonable height. [We note that the request to prune to fence height somewhat contradicts the need for privacy.] The letter notes that the respondents' trees encroached onto their property by some 3 m. 13In response to this request, the respondents sought advice from Mr Kyle Hill, consulting arborist, Growing My Way Tree Services. Material in the respondents' bundle shows the trees were inspected on 19 June 2010. The trees as a group were estimated to be below 10 m and structurally sound. The arborist recommends crown thinning of small diameter branches no greater than 50 mm in diameter, pruning to create reasonable separation from applicants' property, removal of a branch overhanging the applicants' property, removal of deadwood, canopy heights not to be significantly reduced, total foliage volume not to exceed 15-20%, and all works to be supervised by an AQF level 5 arborist. 14Council records show that on 1 July 2010 the applicants applied to council for the pruning of four Lillypillies and two unspecified trees, presumably the Tuckeroos, on the respondents' land. The reasons given were to increase solar penetration, overcrowding, pest control, general tree care and hazard reduction. Council gave permission to prune the Lillypillies by no more than 15% of their overall live canopy with no branch over 100 mm in diameter to be removed. The Tuckeroos were permitted to be pruned by 10%. More specifically, the pruning instructions for the six trees state: Consent given to reduction prune and selectively thin to improve solar access. Pruning should maintain/ improve crown form . The assessment report also records that permission was given to prune a Magnolia grandiflora by 5%. It is also noted that the respondents did not sign the application. The guidelines on the application form state that ' if the tree or branch to be pruned/ removed is within the neighbour's boundary the owner must sign the application.' 15On 12 July 2010 the respondents applied to council for permission to prune the trees in accordance with their arborist's report. (We note that the application also included pruning of trees not subject to the application before the Court.) Permission was given to prune the Lillypillies and Tuckeroos as specified in the consent given to the neighbours. The Instructions note that ' No additional pruning is permitted '. 16The respondents state in their evidence that at the time they made their application to council that they asked whether council would permit the reduction in height requested by their neighbours. They were informed that no approval would be given for such pruning. 17We estimate that the maximum height reduction permitted would have been no more than 1 m as the assessment report by the council tree management officer records the heights of the Lillypillies at 9 m and the Tuckeroos at 8 m 18The trees were pruned on 13 August 2010. The respondents state that they spoke to their neighbours after the pruning was completed but the applicants were still dissatisfied and intended to take the matter to the Land & Environment Court. 19The applicants obtained a Tree Report from Mr Mark Hartley, The Arborist Network dated 26 August 2010 as part of the application under the Trees Act . The stated scope of the report 'is to discuss the likely response of the two Lilli Pillis [sic] and two Tuckeroos to being cut back somewhere near fence height.' It is not clear from the report whether the trees were inspected, given that there are three Lillypillies, not two. 20In the 'Background' section the report in part states; Recently the Lilli Pillis have been pruned to allow for improved light penetration. My client is keen to reduce the trees and to provide for additional planting in order to restore the intended screening. The discussion section states: In order to provide hedge style screening from your property extending from the fence line to approximately 3.5-4 metres in height would require the tops of the trees to be removed. Both these species are likely to sucker heavily if they are cut back particularly if this pruning takes place in late spring to late summer. Mr Hartley refers to the proposed action as a 'drastic reduction'. Whilst this will result in a number of large wounds it is unlikely to cause the decline of the tree and the normal concerns about the structural attachment of new growth as the trees would be maintained as a low hedge. New growth will have strong apical dominance and as a result will need to be managed by repeated pruning. To form a dense hedge it is advisable to clip small amounts regularly (several times a year) rather than removing large amounts infrequently (once a year or less). 21The 'Recommendations' do not suggest at what height the trees should be initially reduced to; rather the author suggests contacting the neighbour to ask if they are prepared to have the trees reduced and turned into a hedge. In addition we have difficulty reconciling drastic reduction pruning causing a large number of wounds, especially with regard to the Tuckeroo trees, with a conclusion that the trees are unlikely to decline. We therefore consider the report to be of no assistance to the Court.