Bazett & McFadden v Bonser [2020] NSWLEC 1668

Bazett & McFadden v Bonser [2020] NSWLEC 1668

The four cypress trees formed a hedge exceeding 2.5 metres, the applicants had made reasonable efforts to resolve the matter, and the hedge severely obstructed a previously available view from the applicants' upper-level rooms. Although the respondents had legitimate interests in privacy, amenity, environmental benefits and shading, the obstruction warranted orders. Removal of the hedge was preferred because pruning to 4.2 metres would be difficult, onerous if repeated annually, likely unattractive, likely to promote further growth over the applicants' property, and could create ongoing disputes or burdens for successors in title.

Jurisdiction
Australia
Judgment Date
01 December 2020
Procedural Posture
Class 2 Application Pursuant to S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The application is granted.
Legal Topics
['neighbouring Hedge' 'cypress Trees' 'obstruction of Views' 'reasonable Effort to Reach Agreement' 'privacy and Amenity Benefits' 'orders Running With the Land']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['neighbouring Hedge' 'cypress Trees' 'obstruction of Views' 'reasonable Effort to Reach Agreement' 'privacy and Amenity Benefits' 'orders Running With the Land']

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Procedural Posture

Class 2 Application Pursuant to S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the four cypress trees were planted so as to form a hedge rising to a height of at least 2.5 metres.' 'Whether the applicants made reasonable effort to reach agreement with the tree owners before seeking orders.' "Whether the hedge severely obstructed a view from the applicants' dwelling." "Whether the applicants' interest in mitigating the obstruction outweighed reasons to avoid interfering with the trees." 'Whether removal of the hedge or pruning and ongoing maintenance was the appropriate remedy.']

Ratio Decidendi

The four cypress trees formed a hedge exceeding 2.5 metres, the applicants had made reasonable efforts to resolve the matter, and the hedge severely obstructed a previously available view from the applicants' upper-level rooms. Although the respondents had legitimate interests in privacy, amenity, environmental benefits and shading, the obstruction warranted orders. Removal of the hedge was preferred because pruning to 4.2 metres would be difficult, onerous if repeated annually, likely unattractive, likely to promote further growth over the applicants' property, and could create ongoing disputes or burdens for successors in title.

Court Disposition

The application is granted.

Orders

  • ['Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the four cypress trees forming a hedge along their western boundary, to no more than 50 cm above ground level. The works are to be done in...