Burns v St Clair

[2015] NSWLEC 1185

Land and Environment Court

New South Wales

Medium Neutral Citation:	Burns & anor v St Clair & anor [2015] NSWLEC 1185
Hearing dates:	25 May 2015
Date of orders:	25 May 2015
Decision date:	25 May 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Tenacity Consulting v Warringah Shire Council [2004[ NSWLEC 140
Category:	Principal judgment
Parties:	Applicants: A & L Burns Respondents: L & K St Clair
Representation:	Applicants: Mr D Legg (Solicitor) Burridge & Legg Solicitors Respondents: Ms k and Mr L St Clair (Litigants in Person)
File Number(s):	20149 of 2015

Judgment

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

1. COMMISSIONER: Thirty years ago, in 1985, the applicants purchased their Forestville property. They contend that at that time they had the benefit of panoramic views, from north to west, of the ridges and valleys of Garial National Park. They particularly enjoyed the setting of the sun from their deck and lounge room.

2. In 2006 the respondents purchased the adjoining property to the west and down-slope of the applicants’ property; the property included a pool in the front setback. Growing on their land was a row of bamboo planted along the common boundary between the front of the respondents’ dwelling and the front fence. The bamboo separates the applicants’ driveway from the respondents’ pool. During the hearing it was suggested that the bamboo was planted by the former owners of the respondents’ property in lieu of a dividing fence. The respondents value the bamboo for the privacy it affords their pool.

3. The applicants have applied under s 14B of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the annual pruning of the bamboo, at the respondents’ expense, to a height of 4m, or as considered during the hearing, a height of about 500mm above the floor of the upper deck. This would enable sitting views of the sunset from the deck and lounge room. The applicants also stated that they had been willing in the past to share the cost of pruning.

4. While the respondents dispute the applicants’ claim that the bamboo severely obstructs views from their dwelling, the respondents have suggested alternative orders for the sharing of the annual cost of pruning the bamboo to a height of 1m above the floor of the upper deck. They maintain that this would enable standing views of the sunset but limit the potential for overlooking into their pool. The respondents included an architectural section of the suggested height. A ribbon tied to the bamboo near the respondents’ dwelling indicated the finished height would be about 500mm or so below the eaves of their dwelling.

5. Although the parties are very close in terms of their proposed orders, it is essential that the Court consider the jurisdictional tests that apply to applications made…