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. The views 7The hearing commenced on site and the view was observed from the five viewing points nominated in the application. All viewing points are from windows or other elements of the applicant's dwelling that face east. The views are principally in an arc from north-north-east to east and include Grotto Point, Manly in the distance, North Head and Middle Head, including the water of Middle Harbour. Balmoral Beach is visible from the first floor. 8Viewing point 1 is described as the family room. From this point, and indeed from any viewing point, the Viburnums could not be seen. We noted that the Pears partially obstruct the view to Middle Head from a sitting position. We also noted several established trees between the applicant's property and Balmoral Beach that break the view of the water. 9Viewing Point 2 is up a short flight of four stairs and is described as the lounge. From a sitting position we estimate less than 5% of the view of the water is obscured by the Pears. Viewing point 3 is the drawing room and the Pears do not obstruct any view of the water or iconic headlands. They slightly obscure a view of a dwelling in the middle distance and vegetation both nearby and in the distance. 10Viewing point 4 is an upstairs bedroom and associated balcony. The Pears can only be seen by looking down from the edge of the balcony. The view from this point is an expansive view of Middle Harbour. 11The outdoor terrace at the rear of the applicant's dwelling is viewing point 5. The Pears only obstruct a view of the respondents' dwelling and their elevated terrace. The jurisdictional tests 12Turning to the jurisdictional tests required by the Act, s 14B(b) enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land or 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. 13Section 14A(1) states that Part 2A only applies to groups of 2 or more trees that are planted so as to form a hedge and rise to a height of at least 2.5m and are situated on appropriately zoned land. 14Dr Berveling for the applicant contends that there are two groups of trees - the three Pears and the row of Viburnums. There is no dispute that all of the trees are planted. Ms Rourke for the respondents relies on the judgment in Wisdom v Payn [2011] NSWLEC 1012 at [45] where Moore SC and Hewett AC considered that "...the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. " She submits that this group of trees is not a linear arrangement and is therefore not a hedge. However, she did state that if we were minded to put the applicant's case at its highest and accepted it is a hedge then the application would fail the tests under s 14E(2)(a) and (b). 15In this regard, we find both the group of Pears and the row of Viburnums to be two separate hedges for the purpose of the Act. We accept Dr Berveling's submission that s 14A requires there only be two trees to invoke the jurisdiction as any two trees planted side by side are in a linear arrangement, therefore an additional tree adjacent to any other tree in that group can be part of that hedge. 16Considering s 14A(1)(b) and the requirement that the trees rise to a height of at least 2.5m above existing ground level , we do not accept Dr Berveling's submission that the word 'rise' is used in any other way except in the present tense; that is, that the trees must have reached that height at the time of the hearing. We do not accept Dr Berveling's view that the word 'rise' implies a 'capacity' of the trees to reach that height. His submission is made on the basis of the words in s 14D that enables the Court to make an order to 'restrain or prevent' the obstruction of a view. We note that the Court has held this opinion in Tooth v McCombie [2011] NSWLEC 1004 at [14] and in a more detailed consideration in Wisdom v Payn at [57]. 17We measured the tallest of the Viburnums to be 1.94m above ground and as such, these trees do not meet the jurisdictional test in s 14A (1)(b) and therefore the application with respect to these trees is dismissed. 18We accept that the Pears are all in excess of 2.5m and therefore meet the jurisdictional tests in s 14A and the Court can proceed to consider the tests under s 14E(2)(a) and, if necessary, s 14E(2)(b). 19Section 14E(2)(a) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a)the trees concerned: (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and ... 20The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore does not anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view from a dwelling at the time of the hearing. 21Dr Berveling presses that from a seated position from V1 and V2 the Pear trees severely obstruct the iconic view of Middle Head and that, while there are other trees on other properties that limit the broader view of Middle Harbour, it is only the Pears that obstruct the view of Middle Head. It was put to us by the applicant at the site inspection that V1 and V2 are the areas she most frequently uses. 22Ms Rourke considered that the dictionary meaning of the word 'severe' including 'harsh', 'harshly extreme', 'hard to endure' and so on is a 'world away' from the reality of the extent of the view lost from any of the viewing points. Whilst she accepts that the view could be considered to be iconic, she contends that there is very little obstruction of any part of the broad view available from the full range of viewing points on the applicant's property. 23Both advocates considered the Planning Principle in Tenacity Consulting v Warringah [2004] NSWLEC 140 as it has been referred to by the Court in consideration of matters of trees obstructing views. However, we are not minded to take that path in these proceedings. We are content to take the evidence as we saw it from the applicant's property as we have described earlier in this judgment. 24On the evidence before us, we do not find that the Pears severely obstruct any view from any of the nominated viewing points on the applicant's property. At best we consider the loss to be up to 5% and we could not construe this to be a severe obstruction of a view. Therefore as s14E(2)(a)(ii) cannot be satisfied, the Court is not required to consider the balancing of competing interests in s 14E(2)(b), any matters under s 14F and finally the discretion provided by s 14D for the making of orders. 25Whilst there may be jurisdiction at some time in the future if the trees are not maintained, the site inspection at the hearing clearly showed there is no severe obstruction of any view caused by any of the trees subject to the application and the Court has no jurisdiction to make an order under Part 2A. This includes any order for the future maintenance of the trees. As discussed in the matter of Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change, the applicant may make a new application. 26Therefore as a result of the foregoing, the Orders of the Court are; (1) The application is dismissed. J Fakes Commissioner of the Court D Galwey Acting 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: 24 March 2011