Salmon v Kibble & anor [2012] NSWLEC 1359

Land and Environment Court New South Wales

Medium Neutral Citation: Salmon v Kibble & anor [2012] NSWLEC 1359 Hearing dates: 10 December 2012 Decision date: 10 December 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld; tree removal ordered Catchwords: TREES [NEIGHBOURS]: Hedge; obstruction of views; consent orders; tree removal at applicant's expense; height limits for replacement hedge Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ms Jill Salmon (Applicant) Mr P and Mrs P Kibble (Respondents) Representation: Applicant: Mr Tony Cheney (Solicitor) Respondents: Mr Michael Arch (Solicitor) Applicant: Cheney & Wilson Respondent: Concordia Pacific File Number(s): 20941 of 2012

Judgment 1COMMISSIONER: This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of an apartment in Kirribilli against the owners of a hedge growing on an adjoining property. 2The application was originally made by the Owners Corporation on behalf of a numbers of owners of individual units. While an owner of land may make an application under s 14B of the Act, the Court's jurisdiction to make orders is only engaged if the relevant jurisdictional tests are satisfied. Key amongst these is s 14E(2) that in part states: (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 [my emphasis] situated on the applicant's land, 3The Court has required applications to be made by owners of individual dwellings otherwise the Court would have no jurisdiction to make orders under s 14D. 4In this matter, leave was granted to amend the application by changing the name of the applicant. The respondents' solicitor did not oppose this. 5The parties have proposed consent orders for the removal of 22 x Cupressocyparis leylandii (Leyland Cypress) growing along the northern boundary of the respondents' property. 6These orders are sought on the basis that the trees severely obstruct views from the applicant's dwelling. 7The original application also sought orders for the removal of three palms however, this has been withdrawn. Similarly, the applicant no longer presses a severe obstruction of sunlight. 8Before the Court can agree to making the orders the parties seek, the Court must be satisfied that it has the jurisdiction to do so. In applications made under part 2A, there are a number of jurisdictional tests. 9The first test is whether the nominated trees form a hedge for the purpose of the Act. Section 14A(1) -(a) requires that there are two or more trees planted so as to form a hedge, and (b) requires the trees to be at least 2.5m high. 10I am satisfied that the row of Leyland Cypress trees is a hedge for the purpose of the Act and therefore Part 2A applies to those trees. 11The next relevant test is s 14E(2)(a)(ii). This states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land. 12After observing the view from the applicant's dwelling, I am satisfied that the view to the southeast of the Harbour and Garden Island is severely obstructed by the respondents' trees. 13Section 14E(2)(b) requires that in making orders for any interference with the trees, the Court must be satisfied that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of doing so. In balancing the interests, the Court must consider the relevant matters in s 14F. 14As the parties have proposed consent orders it is reasonable to assume that there is agreement that the applicant's interests prevail. However, in exercising the function of the Court, some independent assessment is necessary. 15In these matters, it is usual to consider whether pruning is a better option than tree removal. The Owners Corporation engaged Ms Catriona Mackenzie, a consulting arborist, to inspect the trees. In her opinion, reducing the height of the trees to the point that would restore the applicant's views and retain some privacy for the respondents would have an undesirable impact on the health and appearance of the trees. In the circumstances, she recommends removal of the trees and their replacement with a suitable hedging species that can be maintained at an appropriate height. 16The proposed orders list a number of potential replacement species; these are Lilli Pilli, Callistemom citrinus "Endeavour" (Crimson Bottlebrush), Leptospermum scoparium (Tea-tree), Pittosporum crassifolium (Karo), Pittosporum tenuifolium (various cultivars available and suitable) and Viburnum tinus (Laurustinus). 17With the expertise I bring to the Court, I concur with Ms Mackenzie's conclusions. 18Therefore, as the Court's jurisdiction to make orders is engaged, I propose to make the orders sought by the parties. 19By consent, the Orders of the Court are: (1)On or before 15 January 2013 the respondents are to remove the twenty two (22) x Cupressocyparis leylandii (Leyland Cypress) trees located within and adjacent to the northern boundary of the property 15 Holbrook Avenue, Kirribilli (the property). (2)In the event the respondents wish to plant a hedge to replace the trees removed pursuant to Order 1, the hedge shall be of a suitable salt tolerant species for a 2-3 metre hedge and could comprise one of the species in paragraph [16] of this judgment or a similar species selected by the respondents. (3)The respondents are to maintain the replacement hedge so that it shall not exceed the following heights: (a)From a point commencing 20.63 metres from the north western corner of the Property (the Commencing Point) to a point on the northern boundary of the Property a distance of 7 metres there from (the Intermediate Point) at a height of 0.5 metres above the northern boundary fence of the Property; (b)From the Intermediate Point to the north eastern corner of the Property (the End Point) at a height of one (1) metre above the northern boundary fence of the Property; (c)In the event that the fence referred to in Order 2 (a) and (b) has been modified or removed after the date of these Orders such replacement hedge shall be maintained at the height referred to as "Restriction Heights" referred to in the survey of Watson Buchan Pty Limited dated 29/7/2009 and updated 30/11/2012, a copy of which is annexed to the Orders. (4)The respondents shall undertake maintenance work (i.e. pruning and or trimming) of any replacement hedge to ensure that the hedge complies with the height restrictions in Order 3 (a), (b) and (c) within 21 days of notice in writing from the applicant to the respondents. (5)The Applicant will pay the full the costs for the removal of the Leyland Cypress trees and the replanting of a suitable species to compose a replacement hedge, provided that all of the Leyland Cypress trees are removed on or before 15 January 2013. In the event that the Respondents are unable to remove the Leyland Cyprus trees by the 15th January 2013 by reason of delay beyond the control of the Respondents the Applicant will pay 75% of the costs of removal in the event that removal occurs on or prior to the 1st February, 2013. The costs to be paid by the Applicant pursuant to this Order shall include any costs associated with the temporary dismantling and or reinstatement of the fence that adjoins the northern boundary of the Property that may be required for the removal of the Leyland Cypress trees and/or the planting of the replacement hedge, disposal of the "green waste" generated by removal of the trees, and fees, if any, payable to North Sydney Council. The Applicant shall pay these costs to the Respondents within fourteen (14) days of the delivery of a tax invoice to the Applicant following completion of such work. (6) The Court notes that: (a) The parties agree that there shall be no order as to costs with the intent that each party pays their own costs; (b)Pursuant to S16 Trees (Dispute Between Neighbours) Act these orders bind the successors in title of the parties; and (c)Pursuant to S17 Trees (Dispute Between Neighbours) Act the work in Orders 1 and 2(a), (b) and (c) hereof may be carried out by North Sydney Council at the request of the Applicant if the Respondents are in default of Orders 1 and 2(a), (b) and (c). _____________________________ J Fakes 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: 03 January 2013