Mosmanites who can't see the harbour for the trees take neighbours to court as land and environment cases rise

Alistair WalshNovember 17, 20110 min read

Mosman dominates the NSW Land and Environment Court neighbourhood disputes over trees blocking views, with the number of court cases having soared since new legislation came into effect in August 2010.

The Trees (Disputes Between Neighbours) Act paved the way for the court to rule on matters regarding trees, hedges and even vines typically after quick one-day hearings with site inspections.

There have been 41 published court judgements across NSW this year. Mosman led the push, with 10 judgements over disputes taking place in the litigious affluent Sydney suburb this year.

Across NSW there were just 10 published cases about obstruction of views in the seven months before the legislation – and then in the last five months of 2010 after the new legislation it jumped to 28 cases.

One Mosman resident faced two concurrent proceedings from neighbours on her north and south sides relating to her bamboo. The applicants wanted the neighbour to remove the bamboo, which she argued provided privacy to her garden and house. The court dismissed both cases.

“We are not satisfied that, as of today, there is any obstruction from any of the viewpoints, let alone a severe one,” Commissioner Linda Pearson noted.

That ruling is a common finding despite the expansion of the laws. Judges found the residents of Mosman to be a little keen in their arboriculture objections, with eight of the 10 cases in Mosman dismissed.

In one Mosman case Senior Commissioner Tim Moore ordered the applicant pay for the capture of a possum that had taken residence in an offending tree. Pruning could only take place when the possum was away, so the neighbour could either remove the possum or hire an arborist to prune the tree in the middle of the night, which was “clearly an absurdity”. (Coleman vs Scern)

In another Mosman case (Boddington v Julianan) Commissioner Judy Fakes was scathing of an applicant’s argument that a row of Leyland Cypress trees in a neighbour’s yard unacceptably obstructed her views of the harbour.

“I find that the applicant is able to obtain expansive views of Middle Harbour and the surrounding district from many positions at the rear of her dwelling. The views the applicant seeks to regain are views in a relatively narrow corridor over side boundaries and those views are affected by vegetation well beyond the respondents' property. I also note that some water views to the west are available from [another vantage point].”

Out of the 31 other cases published by the NSW Court in 2011, 14 were upheld. One was in Watsons Bay. 

The judges were willing to uphold rulings in cases where they found the views acceptably compromised.

In a case in Birchgrove (Sheehy vs jufferman) Fakes ordered the respondent to keep hedges trimmed to a maximum height of 2 metres to restore the applicant’s view of the Harbour Bridge.

“The view of the Harbour Bridge is iconic,” Fakes ruled.

Almost all of the 41 cases involved water views, although there were cases inland including Pymble and Cherrybrook and they tended to relate to issues of sunlight.

In one case the applicant argued that “all east-rising sun is totally blocked” from her Cherrybrook property. In a lengthy review of shadow diagrams, expert testimony and on-sight photography Fakes ruled “the evidence is clear that there is no severe obstruction of sunlight to any window of the applicant's dwelling as a result of the trees”.

“The configuration and aspect of the applicant's dwelling, combined with the plants in the applicant's own garden, are such that the windows on the southern elevation are not capable of receiving direct sunlight even in the absence of the respondent's trees.”

In many cases being pushed through with the new hedge amendment, arguments came down to semantics with the definition of a hedge. Judges found some applicants to be liberal with their definition of a hedge.

Fakes said of a Vaucluse case (Muraben v Elmowy) “The applicant considers that the intermingling of the canopies of the trees can and should be interpreted as a 'hedge'. This could also imply that a forest is a ‘hedge.'”

In a case in Hunters Hill (Ridley v The Owners Strata Plan No 60662) Fakes said: “The critical element is whether they are planted 'so as to form a hedge'. I am satisfied that they meet part of the description in Wisdom v Payn at [45] in that there is ... 'a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line’.”

Alistair Walsh

Deutsche Welle online reporter
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