Devile & anor v Frith & anor [2014] NSWLEC 1002

Devile & anor v Frith & anor [2014] NSWLEC 1002

The Court had jurisdiction only in respect of the easternmost Leyland Cypress trees in Hedge 1 because trees 1-9 severely obstructed mid-winter morning sunlight to windows 5 and 6 and the glass doors of the family room. After balancing the applicants' interest in reducing that obstruction against the respondents' interests in retaining the trees and the likely impact of pruning, some pruning was warranted but not to the 9m height sought. The bamboo, Hedge 3, and the other nominated windows either did not satisfy s 14E(2)(a)(i), were beyond jurisdiction, or did not justify orders.

Jurisdiction
Australia
Judgment Date
14 January 2014
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part.
Legal Topics
['high Hedges' 'obstruction of Sunlight' 'pruning Orders' 'neighbouring Land']
['trees Disputes Between Neighbours' 'land and Environment' 'property'] ['high Hedges' 'obstruction of Sunlight' 'pruning Orders' 'neighbouring Land']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees and bamboo formed hedges within s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the respondents' trees were severely obstructing sunlight to windows of the applicants' dwelling within s 14E(2)(a)(i)." "Whether the applicants' interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)." 'Whether a further application under Part 2A could be considered in light of the previous decision in Devile v Frith [2011] NSWLEC 1250.' 'What pruning and maintenance orders, if any, should be made.']

Ratio Decidendi

The Court had jurisdiction only in respect of the easternmost Leyland Cypress trees in Hedge 1 because trees 1-9 severely obstructed mid-winter morning sunlight to windows 5 and 6 and the glass doors of the family room. After balancing the applicants' interest in reducing that obstruction against the respondents' interests in retaining the trees and the likely impact of pruning, some pruning was warranted but not to the 9m height sought. The bamboo, Hedge 3, and the other nominated windows either did not satisfy s 14E(2)(a)(i), were beyond jurisdiction, or did not justify orders.

Court Disposition

Application upheld in part.

Orders

  • ['The respondents are to obtain up to three quotes for the pruning of trees 1-9 being the easternmost Leyland Cypress trees growing along their southern boundary in accordance with paragraph [41] of the judgment.' 'The cheapest quote is to be selected and the applicants are to be provided with a copy of each quote...