Bowen v Harvey

[2011] NSWLEC 1228

Land and Environment Court

New South Wales

Medium Neutral Citation:	Bowen v Harvey [2011] NSWLEC 1228
Hearing dates:	5 August 2011
Decision date:	05 August 2011
Jurisdiction:	Class 2
Before:	Pearson C; Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Ms J Bowen (Applicant) Mr C M Harvey (Respondent)
Representation:	Ms J Bowen (Applicant in person) Ms J Harvey (Respondent’s daughter)
File Number(s):	20310 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Introduction

1. COMMISSIONERS: This is an application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman in relation to a bamboo hedge on adjoining land.

1. This application was heard together with an application made by the immediate neighbour to the north: proceedings 20311 of 2011.

1. The bamboo is planted in an area of vegetated garden close to the common boundary of the applicant's and respondent's properties.

1. The applicant sought orders for the removal of the hedge, or for it to be pruned to an acceptable height and maintained at that height, on the basis that the bamboo obstructs extensive water views and views of the surrounding landscape from her dwelling.

1. The application was accompanied by photographs of the bamboo showing it extending above the height of the surrounding vegetation, which includes mostly established trees.

Site inspection

1. The hearing was held onsite, beginning with a view of the bamboo from the respondent's property followed by an inspection of the views from the applicant's dwelling.

1. It was apparent on inspection that the bamboo has recently been trimmed to a height no taller than the canopies of the surrounding trees.

1. The respondent opposed removal of the bamboo on the basis that it provides privacy to her dwelling and garden.

1. It was not in dispute that the bamboo forms a hedge as defined in s 14A(1) of the Act and is currently at a height of at least 2.5 metres. Accordingly, Part 2A of the Act applies.

1. The issue is whether we are satisfied that the bamboo is severely obstructing a view from the dwelling on the applicant's land, as required under s 14E(2) of the Act before the Court can make an order.

1. There are four views to which the applicant took us.

1. View 1 is from the main living room and deck on the upper level. The main view from that viewpoint is across to North Head and includes Middle Harbour and Grotto Point. There is currently no obstruction to that view caused by the bamboo.

1. Similarly for View 2, from the bedroom on the second level, and View 3, from the study on the second level, the view is of North Head, Grotto Point and Middle Harbour. This view is partly obscured by other trees, including an Angophora, but the bamboo is not obstructing the view.

1. For View 4, from the study on the lower level, the outlook is into vegetation with small glimpses of water. Pruning or removal of the bamboo would not significantly alter this outlook at present.

Jurisdiction

1. Part 2A of the Act, at s 14E(2)(a), requires that we be satisfied at the time of determining the application that there is a severe obstruction of a view.

1. We are not satisfied that, as of today, there is any obstruction from any of the viewpoints, let alone a severe one.

1. We acknowledge that the situation may have been different prior to pruning of the bamboo, as shown in photographs accompanying the application.

1. Accordingly, we dismiss the application, noting that should circumstances change, a further application to the Court can be made.

Orders

1. As a result of the foregoing, the Orders of the Court are:

(1)   The application is dismissed.

L Pearson

Commissioner of the Court

D Galwey

Acting Commissioner of the Court