Land and Environment Court New South Wales

• Medium Neutral Citation: Wood v Bergman [2011] NSWLEC 1068
• Hearing dates: 18 March 2011
• Decision date: 18 March 2011
• Before: Fakes C; Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS]; hedge; obstruction of views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr M Wood [applicant]; Mr T Bergman [respondent]
• Representation: Mr M Wood [litigant in person]; Mr T Bergman [litigant in person]
• File Number(s): 20931 of 2010

Judgment

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

1 COMMISSIONERS: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Mosman against the owner of trees growing on an adjoining property.

2 The application is made on the basis that the trees severely obstruct views from the applicant's dwelling.

3 The trees are a Golden Cane Palm (a clumping species of palm) and an unidentified single-trunk palm bearing a resemblance to a Norfolk Palm. The palms are growing in the corner of a raised garden bed on the south-western boundary of the respondent's property between the pool and a deck. There are other Golden Cane palms growing in nearby garden beds.

4 The applicant is seeking the removal of the palms to a point where they no longer impede his view. This would necessitate the entire removal of the single-trunk palm and at least the removal of the taller canes of the Golden Cane palm. If the Golden Cane Palm is to be retained, the applicant seeks its maintenance to a height that does not interfere with the views from his dwelling.

5 The view the applicant seeks to restore and then maintain is of Middle Harbour from Dobroyd Head, Balmoral and North Head. The applicant's position is that this is the view he purchased when he acquired his property.

6 The respondent does not want to remove the palms as they provide privacy to his pool and are an attractive element of his garden.

7 The hearing commenced on site. The applicant nominated two viewing points. Viewing point 1 is described as deck 2; viewing point 2 is deck 3 and is above deck 2.

8 The applicant's property steps down the slope on which it is built. Deck 2 adjoins the downstairs living area and, according to the applicant, is an area frequently used for entertaining. The views are enjoyed from both sitting and standing positions on the deck and similarly from within the living area. The applicant contends that the view is no longer available when seated on the sofas within the living area.

9 We observed the view from sitting and standing positions on various parts of the deck and within the living area. We note that part of the view is obscured by the single-trunk palm and filtered by the taller canes of the Golden Cane Palm. This is particularly so when observed from the north-eastern corner of deck 2 as the palms are quite close to this corner. We also noted two mature Silky Oaks that are relatively close to the applicant's dwelling and which also have some impact on the broader view.

10 The view partly obscured by the palms is about 15-20% of a wider view of Dobroyd Head to the north-east, Balmoral, North Head through to district views of Mosman to the south-east.

11 We note that the palms obscure the view from Deck 2 to the respondent's swimming pool.

12 Viewing point 2 is from Deck 3 that adjoins the main living area of the applicant's dwelling including kitchen, breakfast nook and living room.

13 The view from this deck is best described as a panoramic view of Middle Harbour, Manly and the Heads. It is more extensive than the view from Deck 2. We estimate the palms obscure less than 5% of this view.

14 The applicant did state that the single-trunk palm is not a problem at the moment however he is concerned that it will eventually block his view and he is seeking to deal with it sooner rather than later. However the applicant is concerned that the Golden Cane Palm does obstruct views of the water from the breakfast nook.

15 Turning to the jurisdictional tests, we are satisfied that the trees subject to the application meet the test in s 14A of the Act; that is, there are 2 or more trees planted so as to form a hedge which rise to a height of at least 2.5 m and which are located on appropriately zoned land.

16 Critical to our determination of applications made under s 14B of the Act is consideration of the tests in s 14E(2). The relevant parts of this section state:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part .

17 Only if s 14E(2)(a)(ii) is satisfied do we need to consider the balancing inherent in s 14E(2)(b). Therefore we must be satisfied that the trees are causing a severe obstruction of a view from the applicant's dwelling.

18 In this matter we accept that there is some obstruction of the views from the applicant's dwelling, particularly from Deck 2. However, we are not satisfied that the obstruction is 'severe'.

19 The Macquarie Dictionary uses words such as "harsh; harshly extreme; grave; causing discomfort or distress; hard to endure; rigidly exact" to define 'severe'. The Oxford Dictionary includes "austere; strict; harsh; extreme". These words set the test at a high level.

20 In our opinion, for an obstruction to be 'severe', the majority of the view would have to be obscured from the living area demonstrated to be the most frequently used.

21 We saw nothing at the site inspection that would enable us to interpret the filtered view through the palms from Deck 2 or Deck 3 as being in any way a severe obstruction of that view.

22 We find that the trees subject to the application do not satisfy s 14E(2)(a)(ii) of the Act and therefore the Court cannot make an order under Part 2A.

23 Therefore, as a result of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

J Fakes

Commissioner of the Court

P Hewett

Acting Commissioner of the Court

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Decision last updated: 24 March 2011