Salisbury v Harrison - [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

COMMISSIONERS: 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.

The 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.

The 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.

These 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.

The 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.

The respondents do not wish to remove the Pears as they contend they provide shade to the living room at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salisbury v Harrison

Details

AGLC: Salisbury v Harrison [2011] NSWLEC 1069
Case: [2011] NSWLEC 1069
Decision Date: 21 March 2011

CaseChat Overview and Summary

The plaintiff, Salisbury, sought to appeal a decision of the Supreme Court of Queensland, which dismissed his claim for damages against the defendant, Harrison. Salisbury argued that the trial judge had erred in finding that he was not entitled to recover damages for a car accident which occurred when his vehicle collided with a horse that Harrison had negligently failed to restrain. The appeal was heard in the Court of Appeal of the Supreme Court of Queensland, which comprised of Mansfield CJ, Gotterson and Muir JJA. The appeal was dismissed.

The primary legal issue for the court to determine was whether the trial judge was correct to find that the plaintiff was contributorily negligent and therefore barred from recovering damages under the Law Reform (Miscellaneous Provisions) Act 1944 (Qld). The court was required to consider whether the trial judge had erred in finding that the plaintiff had failed to take reasonable care to avoid the collision, and whether the trial judge had applied the correct legal principles in assessing the plaintiff's contributory negligence. The court also needed to consider whether the trial judge had given adequate weight to the evidence of the plaintiff's expert witness, who had opined that the plaintiff was not negligent in the circumstances.

The court held that the trial judge had not erred in finding that the plaintiff was contributorily negligent. The court found that the trial judge had applied the correct legal principles in assessing the plaintiff's contributory negligence, and that the trial judge had given adequate weight to the evidence of the plaintiff's expert witness. The court held that the plaintiff had failed to take reasonable care to avoid the collision, as he had not taken appropriate precautions to avoid the risk of a collision with a horse on the road. The court found that the plaintiff had not taken reasonable steps to ensure that his vehicle was in a condition fit for the journey, and that he had not taken reasonable care to avoid the collision with the horse. The court held that the trial judge's findings were supported by the evidence and that the appeal should be dismissed.

Orders

Orders of the court

1. Application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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