Price & anor v Harrison & anor [2013] NSWLEC 1149

Price & anor v Harrison & anor [2013] NSWLEC 1149

The four Leyland Cypress trees were planted in a linear arrangement consistent with a hedge, exceeded 2.5m in height, and severely obstructed sunlight to windows of the applicants' dwelling. Considering the relevant discretionary matters, pruning would be detrimental and impractical, so removal and replacement were appropriate and the Court's jurisdiction under s 14D was engaged. The Part 2 damage claim failed because there was no evidence of physical damage to property and the alleged leaf litter, cleaning, amenity, dampness and garden impacts did not satisfy s 10(2).

Jurisdiction
Australia
Judgment Date
13 August 2013
Procedural Posture
Class 2 Tree Dispute Application Under S 7 Part 2 and S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing; Consent Orders Proposed; Application Upheld in Part
Outcome
Application upheld in part; trees to be removed and replaced at applicants' expense; Part 2 damage application dismissed.
Legal Topics
['damage to Property' 'hedge Obstruction of Sunlight' 'consent Orders' 'tree Removal and Replacement']
['land and Environment Court' 'tree Disputes Between Neighbours'] ['damage to Property' 'hedge Obstruction of Sunlight' 'consent Orders' 'tree Removal and Replacement']

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 Part 2 and S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Hearing; Consent Orders Proposed; Application Upheld in Part

Legal Issues

  1. 1 ['Whether the four Leyland Cypress trees were planted so as to form a hedge and were at least 2.5m tall for the purposes of Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees severely obstructed sunlight to windows of the applicants' dwelling and whether the applicants' interest in removing, remedying or restraining the obstruction outweighed matters suggesting the undesirability of interfering with the trees." "Whether the trees had caused, were causing, or could in the near future cause damage to the applicants' property for the purposes of Part 2 of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Court's jurisdiction was engaged to make the consent orders for removal and replacement of the trees."]

Ratio Decidendi

The four Leyland Cypress trees were planted in a linear arrangement consistent with a hedge, exceeded 2.5m in height, and severely obstructed sunlight to windows of the applicants' dwelling. Considering the relevant discretionary matters, pruning would be detrimental and impractical, so removal and replacement were appropriate and the Court's jurisdiction under s 14D was engaged. The Part 2 damage claim failed because there was no evidence of physical damage to property and the alleged leaf litter, cleaning, amenity, dampness and garden impacts did not satisfy s 10(2).

Court Disposition

Application upheld in part; trees to be removed and replaced at applicants' expense; Part 2 damage application dismissed.

Orders

  • ['The application is upheld in part.' 'Within 30 days of the date of these orders the applicants are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove the four Leyland Cypress trees at the rear of 6 Vista Street Mosman. The stumps are to be ground to a depth of at least 300mm....