Spencer v Messenger; Lord v Messenger [2012] NSWLEC 1074

Spencer v Messenger; Lord v Messenger [2012] NSWLEC 1074

The Lillypillies formed a hedge within s 14A(1) and severely obstructed sunlight to the Lord and Spencer windows. Having considered the discretionary matters, the applicants' interest in remedying the obstruction outweighed Mrs Messenger's privacy concerns because pruning to 4.5m would still provide screening, planter boxes and lattice screens on upper units would prevent direct overlooking, and the species was amenable to hedging without likely detriment to tree health or structure.

Jurisdiction
Australia
Judgment Date
27 March 2012
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Obstructing Sunlight and Views / Final Hearing and Principal Judgment
Outcome
Application upheld; pruning ordered.
Legal Topics
['hedge Pruning' 'obstruction of Sunlight' 'obstruction of Views' 'neighbouring Land' 'privacy Screening']
['land and Environment' 'trees Disputes Between Neighbours'] ['hedge Pruning' 'obstruction of Sunlight' 'obstruction of Views' 'neighbouring Land' 'privacy Screening']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Hedge Obstructing Sunlight and Views / Final Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether the row of Lillypillies was a hedge for the purpose of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedge severely obstructed sunlight to windows of the applicants' dwellings under s 14E(2)(a)(i)." 'Whether the hedge severely obstructed views from the Lord dwelling under s 14E(2)(a)(ii).' "Whether the applicants' interests in remedying the obstruction outweighed the respondent's privacy and amenity interests having regard to s 14F." 'What pruning and maintenance orders should be made.']

Ratio Decidendi

The Lillypillies formed a hedge within s 14A(1) and severely obstructed sunlight to the Lord and Spencer windows. Having considered the discretionary matters, the applicants' interest in remedying the obstruction outweighed Mrs Messenger's privacy concerns because pruning to 4.5m would still provide screening, planter boxes and lattice screens on upper units would prevent direct overlooking, and the species was amenable to hedging without likely detriment to tree health or structure.

Court Disposition

Application upheld; pruning ordered.

Orders

  • ['The application to prune the trees to 4.5m is upheld.' "During the month of April 2012, the applicants are engage and pay for an AQF level 3 arborist or horticulturalist with appropriate insurances, to prune the Lillypillies to a height of 4.5m as measured from within the applicants' properties." 'The work is to...