Bowden & anor v Grayson & anor [2013] NSWLEC 1161

Land and Environment Court New South Wales

Medium Neutral Citation: Bowden & anor v Grayson & anor [2013] NSWLEC 1161 Hearing dates: 18 July 2013 Decision date: 19 July 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; iconic views; view obstruction existed when applicant purchased the property; balance of matters at s 14F; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Interpretation Act 1987 Cases Cited: De Zylva & anor v Staas & anor [2012] NSWLEC 1242 Fardouly v Zeritis; Issa v Zeritis [2012] NSWLEC 1355 Haindl v Daisch [2011] NSWLEC 1145 McDougall v Philip [2011] NSWLEC 1280 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Keith Bowden and Linda Bowden (Applicants)

Robert Grayson (First Respondent) Linda Grayson (Second Respondent) Representation: Scott Nash (Applicants) Tatijana Stancevic, PC Law (Applicants)

Grant Christmas, Apex Law (Respondents) File Number(s): 20271 of 2013

Judgment

Introduction 1The land at Balls Head rises quickly northwards from Berrys Bay into the residential suburb of Waverton. Due to the lie of the land and the positions of dwellings, trees and other features, some houses enjoy views not available to others. The sloping land also gives rise to overlooking issues between neighbouring properties. 2Robert and Linda Grayson ("the respondents") have lived at their property since 1996. There is only one other dwelling between theirs and Berrys Bay. They have views to the south and southeast that include Berrys Bay, Sydney Harbour and the Harbour Bridge. They have planted trees in their back garden to gain privacy from dwellings higher up to the east, in Larkin Street, and to the north, in Balls Head Road. 3Keith and Linda Bowden ("the applicants") bought the neighbouring property to the north in September 2011. They say the Graysons' trees obstruct views from their dwelling. After failing in their attempts to reach an agreement with the Graysons regarding tree pruning, they applied to the Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for some of the trees to be pruned. 4At the onsite hearing Mr Nash, counsel for the applicants, clarified the orders being sought. The applicants seek pruning of 27 trees (T9-T16, T19-T27 and T30-T39) to gain views from a bedroom (V1), sunroom (V2), dining room (V4) and family room (V5). They do not seek any orders regarding views from the kitchen (V3 in the application). They wish the trees to be pruned to a height of 4.5 metres and thereafter maintained at a height no greater than 5 metres. 5The respondents do not wish to prune the trees, which they say provide privacy to their property.