L’Estrange v Cunial [2023] NSWLEC 1413

L’Estrange v Cunial [2023] NSWLEC 1413

The applicants had made a reasonable effort to resolve the dispute. The evidence showed the lilly pilly hedge had repeatedly grown to obstruct almost the entirety of the ocean and landscape view from high-use areas of the applicants' dwelling and was likely to continue doing so without orders. That amounted to a severe obstruction. The respondents' privacy, amenity, shading, cooling and water-flow concerns did not outweigh the applicants' interest in having the obstruction remedied, particularly because the hedge at about its current height did not create unreasonable overlooking and lilly pillies tolerate regular pruning. Orders for twice-yearly pruning to 3.8 metres and removal of...

Jurisdiction
Australia
Judgment Date
01 August 2023
Procedural Posture
Class 2 Pt 2 a Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Pruning Orders for Obstruction of Views by Trees / Principal Judgment After Onsite Hearing
Outcome
Application granted to the extent of orders requiring regular pruning and related access and notice arrangements.
Legal Topics
['obstruction of Views' 'severe Obstruction' 'tree Pruning Orders' 'privacy Impacts of Pruning' 'reasonable Effort to Reach Agreement']
['trees Disputes' 'land and Environment Court' 'neighbour Disputes'] ['obstruction of Views' 'severe Obstruction' 'tree Pruning Orders' 'privacy Impacts of Pruning' 'reasonable Effort to Reach Agreement']

Case Brief

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Procedural Posture

Class 2 Pt 2 a Application Under the Trees (disputes Between Neighbours) Act 2006 Seeking Pruning Orders for Obstruction of Views by Trees / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondents before orders were made under s 14E(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the respondents' lilly pilly hedge was causing a severe obstruction of the applicants' view within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the severity and nature of the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'What pruning orders, including height and frequency, should be made.']

Ratio Decidendi

The applicants had made a reasonable effort to resolve the dispute. The evidence showed the lilly pilly hedge had repeatedly grown to obstruct almost the entirety of the ocean and landscape view from high-use areas of the applicants' dwelling and was likely to continue doing so without orders. That amounted to a severe obstruction. The respondents' privacy, amenity, shading, cooling and water-flow concerns did not outweigh the applicants' interest in having the obstruction remedied, particularly because the hedge at about its current height did not create unreasonable overlooking and lilly pillies tolerate regular pruning. Orders for twice-yearly pruning to 3.8 metres and removal of...

Court Disposition

Application granted to the extent of orders requiring regular pruning and related access and notice arrangements.

Orders

  • ['The application is granted to the extent of the following orders.' "During February and August of each year, beginning August 2023, the respondents are to engage a suitably experienced and insured contractor to prune all lilly pillies in the hedge along their western boundary, so that each tree is no taller than...