Salisbury v Harrison
[2015] NSWLEC 1298
•03 August 2015
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
-
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).
-
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.
-
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.
-
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.
-
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.
-
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’.
-
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.
-
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.
-
The applicant stated that she did not agree that the trees were pruned regularly despite many requests to the respondents.
-
It was agreed by both parties that the trees had recently been pruned to the current height.
-
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.
-
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.
-
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
-
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.
-
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
-
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.
-
In Mr Zylber’s report the expanse of the view available from this window is relatively limited and has been calculated at approximately 48o.
-
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.
-
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
-
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.
-
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.
-
When sitting in the Family/Dining room the Viburnums obscure much of the view of the water and distant headlands.
V4
-
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.
Jurisdiction
-
Part 14A (1) of the Act applies to groups of 2 or more trees that are (a) planted so as to form a hedge and (b) rise to a height of at least 2.5 metres (above existing ground). As at (9) all parties agreed on site that part 14A applies to both the Viburnum and the Pears.
-
As part 14A applies I can then proceed to the jurisdictional tests at 14E (2)(a) that states that the Court must not make an order under this part unless it is satisfied that (a)(ii) the trees concerned are severely obstructing a view from a dwelling situated on the applicant’s land and (b) the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
-
The Act sets a high bar in relation to what constitutes a ‘severe’ obstruction and in consideration of the aforementioned at (10) – (22) the only view that can be considered severely obstructed is the view from a seated position in the Family / Dining room (V1). The obstruction from the seated position is caused by the Viburnum hedge.
-
The Pears do not cause a severe obstruction from any of the view points as nominated in the application and therefore the application in regards to the Pear trees is dismissed.
-
In regards to V1 from the Family/Dining room, whilst the Viburnum hedge obstructs the view from a seated position much of the available view of the waters of Middle and North harbour, and the associated headlands, can be clearly seen from a standing position. Therefore I am not satisfied to the degree required that the Viburnum hedge severely obstructs the applicant’s view however if I am wrong in this I will consider the balancing of interests in accordance with s14F as required before the Courts power to make orders under s14D is engaged.
-
The following subclauses under s 14F are relevant and have been considered.
(a) The common boundary is approximately 3 metres from the eastern façade of the applicant’s dwelling. The Viburnum hedge is located at the rear of the respondent’s property directly adjacent to the side boundary fence.
(b) The Viburnums did not exist prior to the dwelling subject of the application. The applicant has resided at the dwelling for 19 years and the Viburnum hedge was planted in 2010.
(c) The Viburnum hedge has grown to a height exceeding 2.5 metres since being planted in 2010. The height at the time of the hearing was approximately 2.8 metres from the ground level on the respondent’s property.
(h) The respondents contend that the Viburnums at the current height provide some privacy to the room at the rear of the house as well as to the grassed terrace directly adjacent to the rear of their dwelling. The respondents also stated that they provide a degree of amenity to the rear garden therefore improving the scenic quality of the land.
(k) The respondent contends that the Viburnums are regularly pruned. It was evident at the hearing, given the regularity of the shape, that the trees had been pruned to contain the height and width. The pruning had not had any detrimental impact on the Viburnums.
(l) The respondent contends that the Viburnums contribute to their privacy at the current height particularly from the Lounge Room (V2) of the applicant’s property and also from the rear terrace (V4) and rear side path located adjacent the Lounge and Dining rooms of the applicant’s property. The respondent also contends that the hedge at the current height contributes to the garden design at the rear of their site. The applicant contends that the portion of the hedge that extends above the common boundary fence does not provide any additional screening to the rear of the respondent’s dwelling. In Mr Zylber’s Statement of Evidence the images (Figure 6) used to convey that it is the width of the hedge rather than the height that provides privacy to the respondent’s property have been taken from the first floor of the applicant’s dwelling. The application is made in regards to the views from four positions on the ground floor and therefore these images are not relevant to the application. The Court considers that the hedge at the current height does contribute to the privacy at the rear of the respondent’s dwelling when viewed from the applicant’s dining room and rear terrace.
(m) There are some other tree canopies beyond the Viburnums that slightly obscure small slices of the view from various viewpoints and additionally from some of the viewpoints rooftops would be exposed if the Viburnum hedge was reduced to the height of the boundary fence.
(n) The applicant contends that regular requests are made to the respondents to reduce the height of the Viburnum hedge to the height of the common boundary fence. The respondents contend that they regularly have the hedge pruned back to the current height.
(p) The Viburnums are evergreen and therefore do not lose their leaves at any one time of the year.
(q) As previously discussed the only view that is severely obstructed by the Viburnum hedge is the view from the seated position in the Dining/Family room (V1). It is acknowledged that the Court commonly adopts elements of the Planning Principe on view sharing published in Tenancy Consulting v Warringah Shire Council [2004] NSWLEC 140 that views from living areas are considered more important than views from service areas or bedrooms however the principle at [27] ‘The expectation to retain side views and sitting views is often unrealistic’ has also been considered. There is no severe obstruction of views to the harbour or headlands from the other nominated positions from within the dwelling at V2, V3 and V4.
-
After considering the discretionary matters in s14F, and bearing in mind that the severe obstruction of the view is only from a seated position from one of the nominated four viewing points in the application, it is considered on balance that the Court has no power to make the orders as sought by the applicant.
-
As a result of the foregoing the application is dismissed.
Orders
The Orders of the Court are:
-
The application is dismissed.
L Durland
Acting Commissioner of the Court
**********
Decision last updated: 03 August 2015
0