Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356

Kiely v Willock; Kiely v Williams & anor [2015] NSWLEC 1356

Although the Court was satisfied that the properties were adjoining and that the Casuarina trees formed hedges to which Part 2A applied, the applicant did not provide sufficient evidence of the view available when he purchased the unit in 2009. The evidence was inconclusive, the overall view was not shown to be severely obstructed to the required extent, and the orders sought would remove the trees or reduce them below the height they were likely to have been in 2009. The requirements of s 14E were not satisfied and the Court's jurisdiction to make orders was not engaged.

Jurisdiction
Australia
Judgment Date
26 August 2015
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Hearing
Outcome
Application dismissed
Legal Topics
['hedge Obstruction of Views' 'adjoining Land' 'jurisdictional Tests Under Part 2 A' 'insufficient Evidence of View Available at Time of Purchase']
['trees Disputes' 'land and Environment Court Proceedings'] ['hedge Obstruction of Views' 'adjoining Land' 'jurisdictional Tests Under Part 2 A' 'insufficient Evidence of View Available at Time of Purchase']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Hearing

Legal Issues

  1. 1 ['Whether the five Casuarina glauca trees formed hedges to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' 'Whether trees across the road were on adjoining land for the purposes of the Act.' "Whether the trees were severely obstructing a view from the applicant's dwelling." "Whether the applicant's interest in removal or pruning outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'Whether the applicant proved what view was available when he purchased his unit in 2009.']

Ratio Decidendi

Although the Court was satisfied that the properties were adjoining and that the Casuarina trees formed hedges to which Part 2A applied, the applicant did not provide sufficient evidence of the view available when he purchased the unit in 2009. The evidence was inconclusive, the overall view was not shown to be severely obstructed to the required extent, and the orders sought would remove the trees or reduce them below the height they were likely to have been in 2009. The requirements of s 14E were not satisfied and the Court's jurisdiction to make orders was not engaged.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']