Wood v Berg

[2011] NSWLEC 1068

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wood v Bergman [2011] NSWLEC 1068
Hearing dates:	18 March 2011
Decision date:	18 March 2011
Before:	Fakes C Hewett AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS]; hedge; obstruction of views
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr M Wood [applicant] Mr T Bergman [respondent]
Representation:	Mr M Wood [litigant in person] Mr T Bergman [litigant in person]
File Number(s):	20931 of 2010

Judgment

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

1. COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman against the owner of trees growing on an adjoining property.

1. The application is made on the basis that the trees severely obstruct views from the applicant's dwelling.

1. The trees are a Golden Cane Palm (a clumping species of palm) and an unidentified single-trunk palm bearing a resemblance to a Norfolk Palm. The palms are growing in the corner of a raised garden bed on the south-western boundary of the respondent's property between the pool and a deck. There are other Golden Cane palms growing in nearby garden beds.

1. The applicant is seeking the removal of the palms to a point where they no longer impede his view. This would necessitate the entire removal of the single-trunk palm and at least the removal of the taller canes of the Golden Cane palm. If the Golden Cane Palm is to be retained, the applicant seeks its maintenance to a height that does not interfere with the views from his dwelling.

1. The view the applicant seeks to restore and then maintain is of Middle Harbour from Dobroyd Head, Balmoral and North Head. The applicant's position is that this is the view he purchased when he acquired his property.

1. The respondent does not want to remove the palms as they provide privacy to his pool and are an attractive element of his garden.

1. The hearing commenced on site. The applicant nominated two viewing points. Viewing point 1 is described as deck 2; viewing point 2 is deck 3 and is above deck 2.

1. The applicant's property steps down the slope on which it is built. Deck 2 adjoins the downstairs living area and, according to the applicant, is an area frequently used for entertaining. The views are enjoyed from both sitting and standing positions on the deck and similarly from within the living area. The applicant contends that the view is no longer available when seated on the sofas within the living area.

1. We observed the view from sitting and standing positions on various parts of the deck and within the living area. We note that part of the view is obscured by the single-trunk palm and filtered by the taller canes of the Golden Cane Palm. This is particularly so when observed from the north-eastern corner…