Haindl v Daisch [2011] NSWLEC 1145

Haindl v Daisch [2011] NSWLEC 1145

The three Weeping Fig trees constituted a hedge, but removal or interference was not warranted. Taking the applicants' upper-level case at its highest by assuming severe obstruction, the privacy, shading and verdant ambience benefits of the trees to the present and future owners of the tree property outweighed the applicants' interest in enhancing their views. For the ground floor pool deck, the Court found the trees did not severely obstruct the view; in any event, the same balancing favoured retention. The applicants did not pursue lesser pruning relief, so the application was dismissed.

Jurisdiction
Australia
Judgment Date
21 April 2011
Procedural Posture
Class 2 Application Pursuant to Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application dismissed.
Legal Topics
['severe Obstruction of Views by Trees Forming a Hedge' 'prerequisites to Part 2 a Jurisdiction' 'meaning of a View From a Viewing Point' 'balancing View Protection Against Privacy, Shade and Amenity' 'tree Preservation Orders and Council Policy' 'wildlife Habitat']
['trees Disputes' 'environmental and Planning Law' 'neighbour Disputes'] ['severe Obstruction of Views by Trees Forming a Hedge' 'prerequisites to Part 2 a Jurisdiction' 'meaning of a View From a Viewing Point' 'balancing View Protection Against Privacy, Shade and Amenity' 'tree Preservation Orders and Council Policy' 'wildlife Habitat']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the three Weeping Fig trees were planted so as to form a hedge for the purposes of s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the views from the applicants' property were severely obstructed within the meaning of s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether a view from a viewing location is to be assessed as a single composite view or as multiple separate views.' "Whether the applicants' interest in removal of the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)." 'Whether any order should be made requiring removal or other intervention with the trees.']

Ratio Decidendi

The three Weeping Fig trees constituted a hedge, but removal or interference was not warranted. Taking the applicants' upper-level case at its highest by assuming severe obstruction, the privacy, shading and verdant ambience benefits of the trees to the present and future owners of the tree property outweighed the applicants' interest in enhancing their views. For the ground floor pool deck, the Court found the trees did not severely obstruct the view; in any event, the same balancing favoured retention. The applicants did not pursue lesser pruning relief, so the application was dismissed.

Court Disposition

Application dismissed.

Orders

  • ["The application pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 concerning three Weeping Fig trees and a Cheese Tree located on the property to the west of the applicants' property is dismissed."]