Australia, June 7 -- New South Wales Land and Environment Court issued text of the following judgement on May 6:

1. Catherine Hoffmann, the applicant, and Marilyn Anna Goff, the respondent, own and occupy properties in North Curl Curl, which share a side boundary. The common boundary extended from approximately west to east between the parties' driveways, which met the street at the end of a cul-de-sac. Both properties were located on a hill that ascended from the west and rose up further towards the north. The respondent owned and occupied the upper level of a two-storey duplex dwelling while the applicant owned and occupied a three-storey detached dwelling, located higher up the slope towards the north.

2. Both parties enjoyed commanding water and district views across a broad arc from east south-east through south around to west north-west. Towards the south-east and south were views of the Tasman Sea, Freshwater/ Harbord Headland, and Curl Curl beach. The distinctive landform, bushland, and historic buildings of Manly and North Head were conspicuous in the mid-distant view to the south. The south-western foreground contained Curl Curl lagoon while more distant views in the arc from south-west to west featured a patchwork of urban dwellings and extensive bushland around Brookvale and the ridgeline of Allambie Heights.

3. Ms Hoffmann particularly valued the proximal ocean, headland, beach, and lagoon views between the south-east and south-west which the Goff's gained over an adjacent reserve. However, the respondent's dwelling and vegetation partially obstructed the applicant's southern outlook, notwithstanding that the Hoffmann's gained extensive views over the top of the Goff's roof.

4. Mr and Mrs Goff purchased their property in 1993. By around 2000, the Goff's had subdivided the land and replaced a cottage with a two-storey dual occupancy development. Though a Landscape plan accompanying the development showed four metre (m) Pittosporum trees in garden beds along the western section of the common boundary, the respondent planted a row of Fig trees (Ficus benjamina).

5. Along the eastern end of the common boundary, rather than Nandina domestica and vines on lattices as indicated on the Landscape plan, the Goff's planted Castelloni bamboo, which was a declared Noxious Weed that required removal. Mr Goff subsequently gained approval from Warringah Shire Council (Council) to use Giant timber bamboo (Bambusa oldhamii) instead, notwithstanding that, in June 2004, Council recommended Mr Goff maintain the bamboo "at an appropriate height so as to not obstruct district views from neighbouring properties ..." to avoid "... further conflict".

6. Soon after purchasing the neighbouring property in 2012, the Hoffmann's lodged a development application (DA) for their dwelling, which included a 3rd storey addition and a raised floor and extended balconies on the 2nd storey. The DA was granted in 2014, and construction was completed in 2015.

7. According to a Chronology at Appendix 12 of 'Respondent Response to Tree Dispute Application and Evidence' (Exhibit 1), between 2016 and about 2020, the parties established a workable balance between views for the applicant and privacy for the respondent through annual pruning of the bamboo and fig trees at the approximate height of the Hoffmann's 2nd storey deck handrail.

8. The Goff's pruned the height of the bamboo and figs each April or May prior to travelling to Canada until about September or October. Following pruning at this time, one may expect the bamboo and figs to be fairly dormant through winter and early spring. However, Ms Hoffmann alleged that by around November, after spring growth, the bamboo and figs caused severe view obstruction which worsened during summer, when the view was especially valued.

9. Due to rapid regrowth, Ms Hoffmann considered annual pruning insufficient and wanted the vegetation, especially the bamboo, pruned three or more times per year. However, Ms Hoffmann resisted people transiting her dwelling to undertake the pruning from her deck and preferred the pruning was completed from the respondent's land.

10. In response to Question 13 in the Tree Dispute Claim Details (Exhibit B), regarding steps to prevent or rectify the view obstruction, Ms Hoffmann noted, "[o]ut of frustration we have spasmodically trimmed the hedges to rail height outside of the April/ May date".

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196a2fc71d63c00467735613)

Disclaimer: Curated by HT Syndication.