Luschwitz v Waterhouse & anor [2017] NSWLEC 1604

Land and Environment Court New South Wales

Medium Neutral Citation: Luschwitz v Waterhouse & anor [2017] NSWLEC 1604 Hearing dates: 26 July 2017 Date of orders: 31 October 2017 Decision date: 31 October 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 29. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedge; severe obstruction of a view; orders for annual pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Haindl v Daisch [2011] NSWLEC 1145 Holland v Bell [2017] NSWLEC 1322 Macourt v Baudinet & anor [2016] NSWLEC 1631 Penklis & anor v Maley & anor [2016] NSWLEC 1615 Tenacity Consulting v Waringah [2004] NSWLEC 140 Category: Principal judgment Parties: Helen Luschwitz (Applicant) Janette Waterhouse (First Respondent) David Waterhouse (Second Respondent) Representation: Helen Luschwitz, Litigant in Person (Applicant) Steven Berveling, Barrister (Respondents) File Number(s): 75040 of 2017

Judgment

Background 1. Ms Luschwitz ('the applicant') has lived at her Elizabeth Bay property since 2002. When she moved into her apartment, she enjoyed views across the water eastward to Darling Point; especially, she says, night-time views with the rising moon. In 2011 her neighbours planted a row of cypress trees ('the hedge') along the boundary. For a period, there was an agreement for pruning the hedge, so as to maintain her views, but the hedge now grows above the adjacent garage wall and obscures part of her view. She has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the hedge to be pruned annually. 2. Mrs and Mr Waterhouse ('the respondents') own and live at the neighbouring property. They say the hedge is an important element of their garden. They don't accept that the view obstruction caused by their hedge is severe, and they disagree on the height to which the hedge might be pruned.