Boyd v Cinelli [2021] NSWLEC 1319

Boyd v Cinelli [2021] NSWLEC 1319

The Pt 2 application failed because the applicants did not demonstrate that the lilly pillies or planter boxes had caused, were causing, or were likely in the near future to cause damage to their property, and the Court's Pt 2 jurisdiction did not extend to enforcing development consent conditions. The Pt 2A application succeeded only for hedges 2, 3 and 4 because those hedges met the statutory hedge requirements and severely obstructed sunlight to relevant windows and views from the applicants' dwelling, and the severity of that obstruction outweighed the reasons against pruning; however, removal of additional trees was unnecessary because the approved plantings would likely have formed...

Jurisdiction
Australia
Judgment Date
07 June 2021
Procedural Posture
Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The Pt 2 application was refused and the Pt 2A application was granted to the extent of pruning and maintenance orders for hedges 2, 3 and 4.
Legal Topics
['damage to Property From Trees' 'obstruction of Views' 'obstruction of Sunlight' 'hedge Pruning Orders' 'reasonable Effort to Reach Agreement']
['trees Disputes Between Neighbours' 'property' 'planning and Environment'] ['damage to Property From Trees' 'obstruction of Views' 'obstruction of Sunlight' 'hedge Pruning Orders' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondents before seeking orders under Pt 2 and Pt 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the lilly pillies in planter boxes 2 and 3 had caused, were causing, or were likely in the near future to cause damage to the applicants' property." 'Whether hedge 1 met the height requirement for Pt 2A jurisdiction and severely obstructed sunlight or views.' "Whether hedges 2, 3 and 4 severely obstructed sunlight to windows of the applicants' dwelling or views from the applicants' dwelling." 'Whether the severity and nature of any obstruction outweighed reasons to avoid interfering with the trees, including privacy, amenity and tree health.' "Whether orders should require removal of additional trees, recurring pruning, or inclusion of pruning obligations in any contract for sale of the respondents' property."]

Ratio Decidendi

The Pt 2 application failed because the applicants did not demonstrate that the lilly pillies or planter boxes had caused, were causing, or were likely in the near future to cause damage to their property, and the Court's Pt 2 jurisdiction did not extend to enforcing development consent conditions. The Pt 2A application succeeded only for hedges 2, 3 and 4 because those hedges met the statutory hedge requirements and severely obstructed sunlight to relevant windows and views from the applicants' dwelling, and the severity of that obstruction outweighed the reasons against pruning; however, removal of additional trees was unnecessary because the approved plantings would likely have formed...

Court Disposition

The Pt 2 application was refused and the Pt 2A application was granted to the extent of pruning and maintenance orders for hedges 2, 3 and 4.

Orders

  • ['The Pt 2 application is refused.' 'The Pt 2A application is granted to the extent of the orders below.' "Within 30 days of the date of these orders, and then in June of each year thereafter, the respondents are to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all...