Lane v Harvey

[2011] NSWLEC 1227

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lane v Harvey [2011] NSWLEC 1227
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:	Mr S Lane (Applicant) Mr C M Harvey (Respondent)
Representation:	Mr S Lane (Applicant in person) Ms J Harvey (Respondent’s daughter)
File Number(s):	20311 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 south: proceedings 20310 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 views across the valley and of the surrounding landscape and partially impacts on water views from his 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 three views to which the applicant took us.

1. View 1 is from the upper level where the main living area and kitchen are situated. The main view from that viewpoint includes North Head, Middle Harbour and part of Chinamans Beach. There is currently no obstruction to that view caused by the bamboo.

1. View 2 is from the bedroom on the second level and is similar to View 1. There is currently no obstruction to that view caused by the bamboo.

1. View 3 is from the games room on the lower level. There is no obstruction to a view caused by the bamboo.

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