Kelly & anor v Dehnert & anor [2015] NSWLEC 1173

Kelly & anor v Dehnert & anor [2015] NSWLEC 1173

The court found that the trees did not severely obstruct views, so no orders were made on that basis. However, it was satisfied that trees in Groups 1 and 2 severely obstructed morning sunlight to certain windows, so partial orders for selective removal were warranted, balancing the applicants’ interest in solar access with the respondents’ interest in a windbreak.

Parties
Applicants: J & M Kelly; Respondents: R & JA Dehnert
Jurisdiction
Australia
Judgment Date
20 May 2015
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / First Instance Determination
Outcome
Application upheld in part
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Obstruction of Sunlight, Obstruction of Views, Neighbour Disputes
Property Law Environmental Law Trees (disputes Between Neighbours) Act 2006 Obstruction of Sunlight Obstruction of Views Neighbour Disputes

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 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

J & M Kelly

Applicants

R & JA Dehnert

Respondents

Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / First Instance Determination

Legal Issues

  1. 1 Whether the row of pines constitutes a hedge under s 14A of the Act
  2. 2 Whether the trees severely obstruct sunlight to windows of dwelling per s 14E(2)(a)(i)
  3. 3 Whether the trees severely obstruct views from the dwelling per s 14E(2)(a)(ii)

Ratio Decidendi

The court found that the trees did not severely obstruct views, so no orders were made on that basis. However, it was satisfied that trees in Groups 1 and 2 severely obstructed morning sunlight to certain windows, so partial orders for selective removal were warranted, balancing the applicants’ interest in solar access with the respondents’ interest in a windbreak.

Court Disposition

Application upheld in part

Orders

  • Within 60 days, respondents to engage and pay for an AQF level 3 arborist to remove trees in Groups 1 and 2 to create spacing of one tree every 4 metres, retaining trees 1, 20, 21, and 29; trees to be selected by the arborist.
  • Trees to be reduced to stumps not more than 200mm above ground, with stumps not to be completely removed or poisoned.