Luschwitz v Waterhouse

[2017] NSWLEC 1604

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Luschwitz v Waterhouse & anor [2017] NSWLEC 1604
Hearing dates:	26 July 2017
Date of orders:	31 October 2017
Decision date:	31 October 2017
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 29.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; severe obstruction of a view; orders for annual pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Haindl v Daisch [2011] NSWLEC 1145 Holland v Bell [2017] NSWLEC 1322 Macourt v Baudinet & anor [2016] NSWLEC 1631 Penklis & anor v Maley & anor [2016] NSWLEC 1615 Tenacity Consulting v Waringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Helen Luschwitz (Applicant) Janette Waterhouse (First Respondent) David Waterhouse (Second Respondent)
Representation:	Helen Luschwitz, Litigant in Person (Applicant) Steven Berveling, Barrister (Respondents)
File Number(s):	75040 of 2017

Judgment

Background

1. Ms Luschwitz (‘the applicant’) has lived at her Elizabeth Bay property since 2002. When she moved into her apartment, she enjoyed views across the water eastward to Darling Point; especially, she says, night-time views with the rising moon. In 2011 her neighbours planted a row of cypress trees (‘the hedge’) along the boundary. For a period, there was an agreement for pruning the hedge, so as to maintain her views, but the hedge now grows above the adjacent garage wall and obscures part of her view. She has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the hedge to be pruned annually.

2. Mrs and Mr Waterhouse (‘the respondents’) own and live at the neighbouring property. They say the hedge is an important element of their garden. They don’t accept that the view obstruction caused by their hedge is severe, and they disagree on the height to which the hedge might be pruned.

Framework of the Trees Act

3. There are several jurisdictional tests in the Trees Act that must be met before the Court can make any orders. Firstly, the trees must be planted to form a hedge, and must be 2.5 metres tall (s 14A(1)). Secondly, the applicant must have made a reasonable effort to reach agreement with the respondents, and must have given them notice of these proceedings (s 14E(1)). Also, the hedge must severely obstruct the applicant’s view to such an extent that the reasons to interfere with the hedge outweigh those not to (s 14E(2)). If these jurisdictional tests are satisfied, in making any orders I must consider a range of matters at s 14F.

4. According to the parties’ respective submissions, the principal matters for consideration include the extent of views, the severity of view obstruction, privacy and the landscape value of the trees. Issues regarding heritage and a permit to construct a pavilion were also raised.

5. The hearing took place onsite, allowing observations of the trees and views.

Do the trees form a hedge?

6. The Waterhouses do not dispute that the row of cypress trees…