A Sydney businessman has lost a court fight with his neighbour over a series of palm trees blocking views from his multimillion-dollar Darling Point home.
But the NSW Land and Environment Court said in a decision on December 23 that it hoped John Curtis, a former chairman of Allianz Australia, and his neighbour, businessman Winardi Pranatajaya, might resolve their dispute without a court order.
John Curtis took his neighbour to court over palm trees, shown inset from the patio of his property, that he alleged blocked the view from his Darling Point home.Credit: Sotheby's, NSW Land and Environment Court.
Curtis applied for an order that his neighbour remove a series of palm trees that he claimed obstructed views from his historic home, purchased in 1993.
The final court hearing took place at his property. The court said the “expansive view” from the first floor of his residence included “the Harbour Bridge, sails of the Opera House, the CBD, [and] water views”, which were visible “above the tops of the palms”.
Acting Commissioner David Galwey said in his judgment that Woollahra Council recognised the value of views to local property owners and pruned fig trees along New Beach Road.
From the first floor of Curtis’ residence, “the tops of the fig trees along New Beach Road sit just below the Harbour Bridge and CBD,” Galwey said.
“According to Mr Curtis, Council maintains those trees at a height of 14.2 metres to protect these views for property owners.”
Views from the property, shown in a 2014 Sotheby’s campaign.Credit: Sotheby's
While the palms did not obstruct those views, Curtis’ barrister argued they would soon grow into and obstruct views from the living area and the main bedroom on that floor.
Under NSW’s Trees (Disputes Between Neighbours) Act, the court may order the removal or pruning of trees in limited circumstances.
The trees must “severely” obstruct sunlight or a view and the aggrieved neighbour must first have made “a reasonable effort” to reach an agreement with their neighbours, as Curtis had. Importantly, the trees must also have been planted “so as to form a hedge”.
Laws did not apply
While the court has in some cases found a row of palms did form a hedge, it found in this case that the palms did not. This meant the tree dispute laws did not apply at all.
The court said that even if the laws did apply because the palms formed a hedge, other conditions were not satisfied because the trees were “not severely obstructing a view” and “reasons to avoid interfering with the trees outweigh Mr Curtis’ interest” in protecting his view.
Galwey said that even from the ground floor areas such as the patio, where the obstruction was the most noticeable, “the palms do not severely obstruct a view”.
A photo taken from the patio, tendered as part of an arborist report, “shows the fig trees along New Beach Road behind the palms, with the fig trees visible to the left and right of the palm fronds near the centre of the photo”, the acting commissioner said.
At this level, “[the] fig trees on New Beach Road obstruct valued view elements including the Harbour Bridge, the Opera House and the CBD”, he said.
A photo taken from the ground floor patio of the property, showing the palm trees and fig trees behind them.Credit: Arborist report tendered in the NSW Land and Environment Court
“Where palm fronds reach above the sightline to the tops of the figs, they obstruct only a small part of the sky view.”
‘Temporary’ obstruction
Galwey accepted that “the palms may at some point severely obstruct the valued view from Mr Curtis’ first floor”, but he said this would be temporary.
“[As] these palms grow taller, the view obstruction they cause moves upward, eventually allowing the view again beneath their fronds,” he said.
“To my mind, the trees’ benefits, particularly their contribution to the amenity of Mr Pranatajaya’s property, outweigh the temporary nature of the view obstruction that seems about to befall Mr Curtis’ property.”
Galwey said that “[the] refusal of this application does not belittle the nature of the dispute, nor does it resolve it”.
“The Court hopes that the parties find a way of reaching a suitable resolution.”
Curtis had claimed the palms breached a covenant restricting the height of buildings and “ornamentation” on Pranatajaya’s property.
“Whether or not ornamentation includes plants is not clear. It is not a matter I need to consider here as I cannot make orders in these proceedings,” Galwey said.
Potential out-of-court solution
“Nevertheless, the covenant’s height restriction provides some guidance to the parties on view retention, and Mr Pranatajaya seems open to mitigating this dispute between neighbours.”
One option raised in court was to remove the palms and replace them with bamboo maintained at a specific height. However, council consent is ordinarily required to prune or remove the palms and the council had said in a letter to the court that it did not support either course.
Disputes over trees form a small but reliable part of the court’s work. In 2023, the court finalised about 88 applications related to trees, compared with about 95 in 2022, 97 in 2021 and 72 in 2020.
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