Salisbury v Harrison & anor [2015] NSWLEC 1298

Land and Environment Court New South Wales

Medium Neutral Citation: Salisbury v Harrison & anor [2015] NSWLEC 1298 Hearing dates: 20 July 2015 Decision date: 03 August 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; privacy; balancing of interests; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) (2009) Cases Cited: Tenancy Consulting v Warringah [2004] NSWLEC 140 Category: Principal judgment Parties: J Salisbury (Applicant) D Harrison (First Respondent) A Harrison (Second Respondent) Representation: M Campbell (Applicant) D Harrison, litigant in person (First Respondent) A Harrison, litigant in person (Second Respondent) File Number(s): 20207 of 2015

Judgment 1. This is an application made under s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning the eight Viburnum odoratissimum (Sweet Viburnum) and three Pyrus calleryana (Ornamental Pear) trees located on a property in Mosman owned by Mr and Mrs Harrison (the respondents). 2. The eight Viburnums are located along the rear western boundary of the respondent's property adjacent to the common boundary fence. The three Pyrus are located in the southern portion of the respondent's rear yard and are planted in a cluster that is roughly triangular in configuration. 3. The applicant, Ms Salisbury, is seeking orders for the three Pears and eight Viburnums to be pruned by the respondents to a height of approximately 2.3 metres above ground level (being the height of the common boundary fence) and for the trees to be maintained at that height (or less) thereafter. 4. The orders are sought as the applicant contends that the trees are causing a severe obstruction of views from her dwelling. The application in respect to the severe obstruction of sunlight was not pursued at the hearing and will not be considered in this determination. 5. Mr Campbell, on behalf of the applicant, stated that Ms Salisbury has lived at the property for 19 years and for the majority of that time she has enjoyed extensive and relatively uninterrupted views from the east facing windows out to Middle and North harbours. 6. Mr Campbell suggests that the potential views from the applicant's dwelling are of 'iconic landmarks' and he referenced the Planning Principle of Tenacity Consulting v Warringah Shire Council (2004) NSWLEC 140 for consideration. The court agrees that the views can be considered as 'iconic views'. 7. The respondents do not want to reduce the height of the trees as they say that they provide a degree of privacy from the applicant's property. The respondents discussed privacy to the grassed terrace at the rear of their site and additionally stated that the Pears provide some shade to the living room at the rear of their dwelling. The respondents also contend that the trees at their current height enhance the amenity of the rear outdoor area by providing some variety in the scale of the plantings in the yard. 8. It is the opinion of the respondents that the trees are not causing a severe obstruction of the views and further they stated that the hedges are regularly pruned to mitigate any impact to the adjoining property whilst maintaining shade to their dwelling and privacy to their rear yard. 9. The applicant stated that she did not agree that the trees were pruned regularly despite many requests to the respondents. 10. It was agreed by both parties that the trees had recently been pruned to the current height. 11. The trees were viewed initially from within the respondent's property. It was agreed by all parties that the trees were planted in 2010 with the intention of forming two separate hedges and are all now in excess of 2.5 metres in height. 12. A Statement of Evidence was submitted by Mr Zylber on behalf of the applicant. Mr Zylber is a Planning Consultant and has prepared a 'Views Analysis' report. In section 2.2 of the report Mr Zylber refers to the view from the first floor balcony as being 'a reasonable approximation of the extent of views from the family /dining room and lounge room which were available in the absence of the current hedges'. The application is made in relation to views from ground floor windows and it is therefore not clear to the Court as to why first floor views are being referenced. 13. The extent of the view obstruction from the hedges as sighted at the hearing is inconsistent with some of the view analysis reporting by Mr Zylber. This may be as a result of the recent pruning of the hedges. V3 1. View 3 as annotated in the documents tendered to the Court is the view from the Drawing Room of the applicant's property. In the Statement of Evidence prepared by Mr Zylber he contends that approximately 54% of the existing view will be obstructed by the Pear trees for approximately 9 months of each year. 2. When standing in the middle of the Drawing Room (V3) on the day of the hearing and looking out of the window the Pear trees and the Viburnums were not able to be seen and therefore do not obscure any view of the water or headlands. V2 1. View 2 is the view from the Lounge Room, a room located directly to the north of the Drawing Room. When standing in this room and looking to the east a small portion of the potential view is obscured by the Pear trees. When looking from the room in a standing position in a northerly direction the Pears are obscuring a small portion of the middle water view and the Viburnums do not appear to be obscuring anything apart from some rooftops and other vegetation that punctuates the overall view. 2. In Mr Zylber's report the expanse of the view available from this window is relatively limited and has been calculated at approximately 48o. 3. It is noted that Mr Campbell put to the Court that the applicant is of below average height and that it is her line of sight that has been considered in the submitted documentation. The Court has viewed the outlooks from an average eye height of approximately 1.6 metres. It is considered that this point of view is more realistic in terms of what can be expected in general terms. 4. The Pears and Viburnums do obscure the middle and foreground views of the water more substantially from the seated position in the Lounge Room however at [27] of Tenacity Consulting v Warringah Shire Council (2004) NSWLEC 140 it is noted that 'The expectation to retain side views and sitting views is often unrealistic'. V1 1. View 1 is the view from the Family / Dining room and Ms Salisbury contends that she spends most of her time in this room and the adjacent kitchen. 2. From a standing position and looking in a northerly direction for the most part the Viburnums are obscuring a rooftop. Standing and looking in an easterly direction there is a minor obstruction of views in the foreground from the Viburnums and a more major obstruction of views to the Middle Harbour and headland beyond from the Pears. It is also noted that beyond the Pears there are other canopies that impact the view to varying extents. 3. When sitting in the Family/Dining room the Viburnums obscure much of the view of the water and distant headlands. V4 1. View 4 is from the patio/terrace at the rear of the dwelling and directly adjoining the Family room. When standing on the rear terrace there is no part of the water or headland views that is obscured by either the Pears or the Viburnums.