Lowe v Gottlieb

[2014] NSWLEC 1260

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lowe v Gottlieb [2014] NSWLEC 1260
Hearing dates:	16 December 2014
Decision date:	16 December 2014
Jurisdiction:	Class 2
Before:	Galwey AC Durland AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; obstruction not severe; application dismissed
Legislation Cited:	Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Category:	Principal judgment
Parties:	Mr and Mrs Lowe (Applicants) Mr and Mrs Gottlieb (Respondents)
Representation:	Mr and Mrs Wenham, as agents (Applicants) Mr and Mrs Gottlieb, litigants in person (Respondents)
File Number(s):	20823 of 2014

Judgment

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

Background

1. Mr and Mrs Gottlieb ("the respondents") have lived at their Dover Heights property for 48 years. In their back garden are two Norfolk Island Pines (Araucaria heterophylla), one near each corner. The Gottliebs say the trees were there when they purchased their property. Since they have owned their property they have pruned the trees to form a hedge.

1. Mr and Mrs Wenham have until recently lived at the property behind and to the east of the Gottliebs for 11 years.

1. The land slopes down to the west so that both properties have views of the CBD, the harbour bridge, sails of the opera house, the harbour and district views.

1. The Wenhams became concerned that foliage of the two trees began growing into and obstructing this view, and so applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the trees to be pruned to reduce their height by approximately one metre.

1. The Gottliebs say they had the trees pruned about six weeks ago and their arborist says no more should be pruned from the trees at this time.

1. A procedural issue arose at the outset of the hearing. Since making the application the Wenhams sold their property to Mr and Mrs Lowe, with final settlement occurring two days before the hearing. The Wenhams produced a letter from the Lowes authorising them to continue with the application. However as the Wenhams no longer own the property they cannot be the applicants. Therefore according to s 64 of the Civil Procedure Act 2005 the Lowes were substituted as the applicants. Although the Wenhams instigated the proceedings, the Lowes shall be referred to here as "the applicants".

The trees

1. The onsite hearing allowed us to observe the trees, the views and the nature of any view obstruction. Mr Lester Willis, arborist, attended the hearing for the applicants. Mr Malcolm Coote, Waverley Council's Tree Officer, also attended the hearing.

1. Both trees have been heavily pruned for many years, so although they have stems approximately 600 mm in diameter, they are only about 6 metres tall. Their crowns form a dense, continuous screen of foliage, rectangular in shape and having the appearance of a hedge. Although the intent of the tree planter at the time they were planted is not clear, the trees have clearly been maintained as a hedge and Mr Gottlieb stated that he believes they form a hedge. We are satisfied for the purposes of the Trees Act that the trees form a hedge.

1. Mr Willis gave evidence that the trees would not be adversely affected by the pruning sought by the applicants.

Is there a severe obstruction of a view?

1. The iconic elements of the view from the applicants' property remain unobstructed. The view is from the living area and rear deck. The bridge, opera house, harbour and CBD can still be seen even from a sitting position within the living area. There is some obstruction of district views, including the golf course pointed out by the applicants, but we note that two double-storey houses, one each side of the Gottliebs' property, contribute in no minor way to the obstruction of this part of the view. We are not of the opinion, and cannot be satisfied to the extent required by the Trees Act, that the trees cause a severe obstruction of the view available from this part of the dwelling. We note and accept the applicants' concerns that further growth of the trees is likely to obstruct the view to a greater extent, including its iconic elements. Should this occur the obstruction may well become severe.

1. If we are wrong on our assessment of the extent of the view obstruction, we note that the intent of the Trees Act, as outlined in background information such as the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009), is not for an applicant to gain views they have not previously enjoyed from their property. The procedural complexities of this matter mean that the Lowes are now the applicants but have only owned the property for two days. There is no suggestion that they have lost any access to views that existed two days prior to the hearing.

1. As we have noted above, should the Lowes find that their circumstances change and a severe view obstruction develops, they may make a new application to the Court.

1. We also note that the Gottliebs are aware of the issue and want to avoid future conflict. They stated at the hearing that they intend to prune the trees, or at least the southern tree, again in a few months and to maintain the trees in future.

Orders

1. On the basis of the above we cannot make any orders for pruning. There is no severe obstruction of the applicants' view. The Court orders that:

(1)   The application is dismissed.

D Galwey

Acting Commissioner of the Court

L Durland

Acting Commissioner of the Court

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