Salmon v Kibble & anor [2012] NSWLEC 1359

Salmon v Kibble & anor [2012] NSWLEC 1359

The row of Leyland Cypress trees was a hedge for the purpose of the Act, the applicant's view to the southeast of the Harbour and Garden Island was severely obstructed by the respondents' trees, and removal rather than pruning was justified because reducing the trees to restore views while retaining privacy would undesirably affect their health and appearance. The Court's jurisdiction was engaged and the consent orders for removal and replacement hedge restrictions were made.

Jurisdiction
Australia
Judgment Date
10 December 2012
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders
Outcome
Application upheld; tree removal ordered.
Legal Topics
['hedge' 'obstruction of Views' 'consent Orders' 'tree Removal' 'replacement Hedge Height Limits']
['trees Disputes Between Neighbours' 'land and Environment'] ['hedge' 'obstruction of Views' 'consent Orders' 'tree Removal' 'replacement Hedge Height Limits']

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Consent Orders

Legal Issues

  1. 1 ['Whether the row of Leyland Cypress trees formed a hedge for the purpose of Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees were severely obstructing a view from a dwelling situated on the applicant's land." "Whether the applicant's interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of making orders interfering with the trees." 'Whether removal rather than pruning was appropriate.']

Ratio Decidendi

The row of Leyland Cypress trees was a hedge for the purpose of the Act, the applicant's view to the southeast of the Harbour and Garden Island was severely obstructed by the respondents' trees, and removal rather than pruning was justified because reducing the trees to restore views while retaining privacy would undesirably affect their health and appearance. The Court's jurisdiction was engaged and the consent orders for removal and replacement hedge restrictions were made.

Court Disposition

Application upheld; tree removal ordered.

Orders

  • ['On or before 15 January 2013 the respondents are to remove the twenty two (22) Cupressocyparis leylandii (Leyland Cypress) trees located within and adjacent to the northern boundary of 15 Holbrook Avenue, Kirribilli.' 'If the respondents wish to plant a replacement hedge, it shall be a suitable salt tolerant...