Pines face the chop after tree court case dispute

When Noela Bishop and her late husband moved into her ground floor Watsons Bay apartment in 1985 she had a clear view of Manly and Obelisk Beach from her living room. But these calming and valuable views gradually disappeared when her neighbours developed their property and planted 23 fast-growing Leyland Cypress pines, which fairly rapidly grew to six metres, on her boundary.

About 50% of her valuable water views were lost by 2005 despite several approaches to her neighbours to resolve the issue.

Frustrated with lack of co-operation next door, she approached Woollahra Council with her loss of view complaint. She suggested that the Leyland Cypresses plantings were not listed in the landscaping details of the approved development consent for works approved on her neighbour’s property. The council disputes this.

The council arranged mediation, but this failed to resolve the dispute between the parties. Following another approach, her neighbours pruned part of what was by now a hedge near her living room  window to a height lower than other parts of it. But the rest of the hedge continued to block the views.

With the help of lawyer Patrick Holland, a partner with McCullough Robertson solicitors, Bishop had her day in the Land and Environment Court in a recent hearing.

Bishop emerged victorious thanks in large part to a dog-eared photo of the view from her lounge room window taken in 1985 when she moved into the apartment and was so delighted she could see as far as Manly and Obelisk beach.

The respondent had contended during the one-day court hearing that he had several outdoor entertainment areas and needed the trees to provide privacy when entertaining on the rear terrace.

Commissioner Judy Fakes ruled; “The application to prune the trees to remedy a severe obstruction of a view from the applicant's dwelling is upheld in part.”

“If I can give anyone hope, I’m happy,” Bishop said of her court win. She suggests she paid for her view when the apartment was bought and had felt hopeless as the trees grew and wiped it out.

She noted that councils on Sydney’s north shore are blacklisting Cypress pines.

Holland says without Bishops 1985 photo of her original views, his client might have had a harder battle to win her view back in the absence of any concrete evidence of what her views were like before the cypresses were planted.

“A photo of Mrs Bishop’s showing the original view she and her late husband enjoyed was the most powerful and effective evidence in the proceedings”, Holland says.

“It took Noela a few months and one photo to do what the local council failed to do in five years – restore her treasured harbour view. A view she was entitled to.”

The court ordered “the applicant to prune the trees to remedy a severe obstruction of a view from the applicant’s dwelling” and for the respondent to organise and pay for an appropriately qualified horticulturalist, arborist or landscaper to prune all of the Leyland Cypress trees in the planter box above the clothesline courtyard to a height of 1.3 metres above the top of the masonry wall around that courtyard that divides the parties’ properties within 30 days.

Thereafter at the cost of the respondent that part of the hedge was to be maintained at a height of no greater than 1.6 metres above the masonry.

Woollahra Council maintains that the height of the Cypress trees did not breach the development approval. The issue was that “a few more” of the Cypress Pines were planted along the row which encroached on the area where the star jasmine was to be planted.

The council said that a condition that specified that screen planting was intended to be higher than three metres had been approved by the private certifier.

In October 2005 the council issued a letter to the neighbour directing him to comply with the approved landscaping plan issued with the construction certificate in regards to the jasmine/cypress area.

Woollahra Council director of planning Allan Coker says that had the neighbour complied with that request, “we realise now that it actually would’ve been a worse outcome for Mrs Bishop”.

“Council couldn’t have imposed some conditions for the landscaping plans and not others for the benefit of Mrs Bishop.” He referred to the landscaping plans for two Sydney Red Gums close by with a height of 15 metres, which were not planted. These trees would have blocked Bishop’s view much more than the pines, he says.

“It is also important to note that there’s a condition where private certifiers are granted authority to approve landscaping plans, not council, which is what happened in this case.

The council added that it is not its responsibility to enforce the order of the Land and Environment court in proceedings between two private parties.

Bishop’s application in regards to sunlight issues was dismissed.

There have been 41 published court judgements across NSW this year.

Note: Pictured pines are for illustrative purposes only