No olive branch in sea view court case

A WESTERN Cape High Court judge has ordered the trimming of wild olive trees that were obstructing the “pretty sea view” at the home of another judge.

In 2013 an application was launched in the High Court where Judge Elizabeth Baartman had asked for an order declaring that she was entitled to an unobstructed view and that her neighbour should trim the tree.

Judge Baartman’s former neighbours, who had sold their property in March last year, had opposed the application. Sarah Stubbs’s responding papers reportedly said that the “positive duty” Judge Baartman had been trying to claim would mean all future owners would have to trim trees.

In his judgment delivered on March 13, Acting Judge John Riley ruled in favour of Judge Baartman’s application.

The original title deed owner had initially sold Judge Baartman’s property to couple Stephen and Sue Forster and the other property to Stubbs and Gregory Largier.

Acting Judge Riley said that it was not disputed that the Forsters found that one of the main attractions had been the “pretty sea view” from the upstairs part of the original house. They were aware that the Stubbs’s and Largier’s property was under developed and could be developed in the future and ensured that it be a condition of sale, that the existing sea view from the upstairs part of the original building be protected from obstruction by any developments to the front property.

It became a clause in their deed of sale that no trees or structures be erected that could obstruct the view.

“Photographic evidence dating back to May 2005 of photographs commissioned by the Forsters, clearly show a nascent wild olive tree which does not obstruct the sea views at all.”

Acting Judge Riley said he was satisfied that just like the Forsters, Judge Baartman “wanted to entrench the right not to have their sea view obstructed”.

By May 2005, the olive tree had increased in size and had obstructed Judge Baartman’s view. The neighbours met in February 2013 to discuss the matter of the tree.

Judge Baartman offered to trim the tree, but Stubbs and Largier rejected the offer.

Lawyers letters were sent and the matter came to court in September 2013.

In the interim, Stubbs and Largier had sold their property to a new owner.

In his judgment, Acting Judge Riley declared that the title deed of the property registered in the new owner’s name which stipulated “no structure whatsoever nor tree shall be erected or planted on the property which would obstruct or partially obstruct the sea views from the existing structure” also applied to the wild olive tree or trees which had already been planted at the time of the imposition of the condition.

He ordered that the wild olive tree or trees be trimmed “so as not to obstruct or partially obstruct the applicants sea views