Lowe v Gottlieb [2014] NSWLEC 1260

Land and Environment Court New South Wales

Medium Neutral Citation: Lowe v Gottlieb [2014] NSWLEC 1260 Hearing dates: 16 December 2014 Decision date: 16 December 2014 Jurisdiction: Class 2 Before: Galwey AC Durland AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; obstruction of views; obstruction not severe; application dismissed Legislation Cited: Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006 Texts Cited: Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009) Category: Principal judgment Parties: Mr and Mrs Lowe (Applicants)

Mr and Mrs Gottlieb (Respondents) Representation: Mr and Mrs Wenham, as agents (Applicants)

Mr and Mrs Gottlieb, litigants in person (Respondents) File Number(s): 20823 of 2014

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

Background 1Mr and Mrs Gottlieb ("the respondents") have lived at their Dover Heights property for 48 years. In their back garden are two Norfolk Island Pines (Araucaria heterophylla), one near each corner. The Gottliebs say the trees were there when they purchased their property. Since they have owned their property they have pruned the trees to form a hedge. 2Mr and Mrs Wenham have until recently lived at the property behind and to the east of the Gottliebs for 11 years. 3The land slopes down to the west so that both properties have views of the CBD, the harbour bridge, sails of the opera house, the harbour and district views. 4The Wenhams became concerned that foliage of the two trees began growing into and obstructing this view, and so applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") seeking orders for the trees to be pruned to reduce their height by approximately one metre. 5The Gottliebs say they had the trees pruned about six weeks ago and their arborist says no more should be pruned from the trees at this time. 6A procedural issue arose at the outset of the hearing. Since making the application the Wenhams sold their property to Mr and Mrs Lowe, with final settlement occurring two days before the hearing. The Wenhams produced a letter from the Lowes authorising them to continue with the application. However as the Wenhams no longer own the property they cannot be the applicants. Therefore according to s 64 of the Civil Procedure Act 2005 the Lowes were substituted as the applicants. Although the Wenhams instigated the proceedings, the Lowes shall be referred to here as "the applicants".