Porteous v Mares [2022] NSWLEC 1544

Porteous v Mares [2022] NSWLEC 1544

The bamboo hedges were within Pt 2A because they were planted as hedges, exceeded 2.5 metres, were not on Crown land, and bamboo is a tree under the Trees Act. The Applicants had made reasonable efforts to reach agreement and had given notice. Although the bamboo had been pruned before the hearing, its rapid regrowth and the parties' history showed that the ongoing state of affairs was a severe obstruction of the Applicants' broad landscape view from living areas and the deck. The Applicants had previously had access to that view, and their interest in maintaining it outweighed the undesirability of interfering with the bamboo because privacy could be reasonably preserved by maintaining...

Jurisdiction
Australia
Judgment Date
05 October 2022
Procedural Posture
Class 2 Pt 2 a Application Under the Trees (disputes Between Neighbours) Act 2006 / Final Hearing Onsite; Principal Judgment and Orders
Outcome
The application was granted to the extent of the pruning and related access orders.
Legal Topics
['neighbouring Hedges' 'bamboo Hedges' 'obstruction of Views' 'severe View Obstruction' 'view Sharing' 'privacy Screening' 'pruning Orders']
['trees Disputes Between Neighbours' 'land and Environment' 'property'] ['neighbouring Hedges' 'bamboo Hedges' 'obstruction of Views' 'severe View Obstruction' 'view Sharing' 'privacy Screening' 'pruning Orders']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ['Whether Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied to the bamboo hedges.' 'Whether the Applicants made a reasonable effort to reach agreement and gave notice of the application.' "Whether the Respondents' bamboo hedges severely obstructed a view from the Applicants' dwelling." "Whether the Applicants' interest in remedying or restraining the view obstruction outweighed matters suggesting the undesirability of interfering with the bamboo, including privacy and amenity benefits." 'What orders should be made to remedy, restrain or prevent the obstruction.']

Ratio Decidendi

The bamboo hedges were within Pt 2A because they were planted as hedges, exceeded 2.5 metres, were not on Crown land, and bamboo is a tree under the Trees Act. The Applicants had made reasonable efforts to reach agreement and had given notice. Although the bamboo had been pruned before the hearing, its rapid regrowth and the parties' history showed that the ongoing state of affairs was a severe obstruction of the Applicants' broad landscape view from living areas and the deck. The Applicants had previously had access to that view, and their interest in maintaining it outweighed the undesirability of interfering with the bamboo because privacy could be reasonably preserved by maintaining...

Court Disposition

The application was granted to the extent of the pruning and related access orders.

Orders

  • ['The application is granted to the extent of the following orders.' "Until such time as the Respondents' bamboo hedges are removed, in May and November each year beginning November 2022 the Respondents are to engage and pay for a suitably qualified and experienced contractor to prune all bamboo in Hedge A to a...