Salisbury v Harrison & anor [2011] NSWLEC 1069

Land and Environment Court New South Wales

Medium Neutral Citation: Salisbury v Harrison & anor [2011] NSWLEC 1069 Hearing dates: 21 March 2011 Decision date: 21 March 2011 Before: Fakes C Galwey AC Decision: 1. Application is dismissed. Catchwords: TREES [NEIGHBOURS]; Hedge; obstruction of view Legislation Cited: Trees (Disputes Between neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Tenacity Consulting v Warringah [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Wisdom v Payn [2011] NSWLEC 1012 Category: Principal judgment Parties: J Salisbury (Applicant) D & A Harrison (Respondents) Representation: Dr S Berveling (Applicant) Mr M Campbell (Applicant) Macro Legal Solicitors & Barristers

Ms F Rourke (Respondents) Norton Rose Australia File Number(s): 20979 of 2010

Judgment 1COMMISSIONERS: This is an application pursuant to s14B Part 2A of the Trees (Disputes Between neighbours) Act 2006 (the Act) made by the owner of a property in Mosman against the owners of trees growing on an adjoining property. 2The trees are a group of 3 Pyrus calleryana (Ornamental Pear) planted in a triangular arrangement in the lawn towards the southern end of the respondents' backyard. The other plants are a row of 8 Viburnum odoratissimum planted along the western boundary of the respondents' rear garden and adjacent to the timber dividing fence between the parties' properties. 3The applicant seeks the following orders: (1)The respondents to remove the Pear trees (T1-T3) within 3 weeks; (2)The respondents to remove the Viburnum hedge (T4-T11) within 3 weeks; (3)In the alternative to order 2 above, the respondents and their successors in title are to trim and maintain the Viburnums to a height not exceeding the common boundary fence; (4)The respondents to ensure that all vegetation in the backyard is maintained to a height not greater than 1.5m; and (5)In the alternative to orders 3 and 4 the applicant and her successors in title are at liberty on 2 weeks notice to engage suitably qualified persons to enter the rear yard of the respondents' property and to trim all the vegetation in the backyard to a height of 1.5m above ground level. These works are to be at the respondents' cost. 4These orders are sought on the basis that when the trees reach their mature size they will severely obstruct views from the applicant's dwelling and will block sunlight to windows of her dwelling. We note that orders 4 and 5 are beyond the jurisdiction of the Court under the Trees Act. 5The application with respect to obstruction of sunlight was withdrawn at the hearing and consequently will not be determined in this judgment. We also note that the applicant proposed alternative orders with respect to the pruning of the Pears to a height not exceeding the top of the ground floor wall in the vicinity of a shade awning at the rear of the respondents' dwelling. 6The respondents do not wish to remove the Pears as they contend they provide shade to the living room at the rear of their dwelling. The trees also provide a visual screen that affords some privacy to an elevated outdoor terrace and to their living room from the applicant's property. In evidence tendered on behalf of the respondents there are statements indicating the preparedness of the respondents to maintain the Pears and the Viburnums at heights well below their potential height.