Bowen v Harvey [2011] NSWLEC 1228

Land and Environment Court New South Wales

Medium Neutral Citation: Bowen v Harvey [2011] NSWLEC 1228 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: Ms J Bowen (Applicant) Mr C M Harvey (Respondent) Representation: Ms J Bowen (Applicant in person) Ms J Harvey (Respondent's daughter) File Number(s): 20310 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 north: proceedings 20311 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 extensive water views and views of the surrounding landscape from her 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 four views to which the applicant took us. 12View 1 is from the main living room and deck on the upper level. The main view from that viewpoint is across to North Head and includes Middle Harbour and Grotto Point. There is currently no obstruction to that view caused by the bamboo. 13Similarly for View 2, from the bedroom on the second level, and View 3, from the study on the second level, the view is of North Head, Grotto Point and Middle Harbour. This view is partly obscured by other trees, including an Angophora, but the bamboo is not obstructing the view. 14For View 4, from the study on the lower level, the outlook is into vegetation with small glimpses of water. Pruning or removal of the bamboo would not significantly alter this outlook at present.