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 1COMMISSIONERS: 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. 2This application was heard together with an application made by the immediate neighbour to the south: proceedings 20310 of 2011. 3The bamboo is planted in an area of vegetated garden close to the common boundary of the applicant's and respondent's properties. 4The 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. 5The 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 6The 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. 7It was apparent on inspection that the bamboo has recently been trimmed to a height no taller than the canopies of the surrounding trees. 8The respondent opposed removal of the bamboo on the basis that it provides privacy to her dwelling and garden. 9It 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. 10The 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. 11There are three views to which the applicant took us. 12View 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. 13View 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. 14View 3 is from the games room on the lower level. There is no obstruction to a view caused by the bamboo. Jurisdiction 15Part 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. 16We are not satisfied that, as of today, there is any obstruction from any of the viewpoints, let alone a severe one. 17We acknowledge that the situation may have been different prior to pruning of the bamboo, as shown in photographs accompanying the application. 18Accordingly, we dismiss the application, noting that should circumstances change, a further application to the Court can be made. Orders 19As 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2011