McDougall v Philip

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: 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 Cammeray against the owners of trees growing on an adjoining property. 2The trees are a row of five conifers ( xCupressocyparis leylandii cv) and one palm growing along the fence at the rear of the respondents' property. 3The applicant contends that one of those trees, Tree 3, severely obstructs a view of Middle Harbour from her dwelling. The applicant's dwelling is a second floor unit that overlooks the rear of the respondents' property. 4The applicant is seeking orders for the pruning of Tree 3 to the height of the gutter on the upper level of the respondents' two-storey dwelling and or the thinning of branches with subsequent quarterly pruning to restore and maintain a view. 5The respondents do not wish to prune or thin the tree on the basis that doing so would compromise the privacy the tree affords their dwelling. 6The trees were first inspected from the respondents' property. The respondents contend that when they purchased their property in early 2002, there were six well established conifers along the back fence. At the time, the trees provided privacy between their property and the part three, part four-storey unit block to the west. The units are set back only 2 m from the dividing fence. In the time since they have owned their property, one of the trees died and another suffered extensive dieback. 7The applicant purchased her unit in April 2010. A photograph (marked 'A' in exhibit A), said to be taken not long after she moved in, and taken by the applicant from a standing position through an open window, shows a small patch of the water of Middle Harbour to the northeast. The water view is framed by the foliage of Tree 3 and a mostly deciduous Plane tree growing as a street tree some 100 m or more away. The view is an oblique view from a corner of the applicant's living room. 8The respondents stated that in or around August/ September 2010, following requests from the applicant's strata manager, they removed one dead tree and a dead part of another adjoining tree for reasons of safety. The respondents believe the trees were poisoned however no evidence was provided to confirm this. The applicant's unit and the one directly above it are now clearly visible from the respondents' backyard. Trees 3, 4 and 5 (as well as the palm) to the north of the row provide screening from the units on the northern end of the applicant's building. It was noted that a secondary trunk of Tree 3 close to the boundary fence is dead. 9Photograph A shows a gap between the trees, however, it is unclear as to whether the dead tree was standing or fallen when it was removed. 10A photograph (marked 'B') taken for the purpose of the application to the Court, illustrates what the applicant contends is the loss of view as a result of the growth of the tree. I note that this photograph has not been taken from the same position as that shown in photograph A. It has been taken from a different angle and to the north of the open window through a fixed window. The Plane tree is also deciduous in this image. 11Photograph C is a view taken from the unit directly above that of the applicant and shows an expansive view of Middle Harbour and the suburbs of Northbridge and Seaforth. This photograph is marked as "view without tree" and is undated. 12Apart from a standing view of Middle Harbour, the applicant contends that she has lost sitting views through the tree towards Beauty Point and Seaforth. 13At the hearing, it was noted that there remains a partial/ filtered view from the standing position through the opening window through which photograph A was taken but slightly less than shown in photograph A. The Plane tree in the middle distance is in the process of leafing up. From a sitting position in the applicant's living room, there is an obscured view through the foliage of Tree 3 to the distant ridge of Beauty Point or Seaforth.