Taylor v Cicco [2016] NSWLEC 1498

Taylor v Cicco [2016] NSWLEC 1498

Although the Leyland Cypress trees were linearly arranged, exceeded 2.5m and formed a hedge to which Part 2A applied, the applicant did not satisfy s 14E(2)(a)(ii). Considering the totality of the views from the home office and kitchen, and applying Tenacity and Haindl, the obstruction caused by Tree 1 was not severe: at most the impact on the CBD view was moderate and the impact on the whole view from V1 was minor, while expansive district views remained unaffected and the kitchen views were accepted to be unaffected. Because the statutory threshold of severe obstruction was not met, the Court could not make pruning or removal orders.

Jurisdiction
Australia
Judgment Date
28 October 2016
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After Hearing
Outcome
Application dismissed
Legal Topics
['high Hedge' 'obstruction of Views' 'part 2 a Jurisdictional Tests' 'view Sharing']
['land and Environment' 'trees Disputes Between Neighbours'] ['high Hedge' 'obstruction of Views' 'part 2 a Jurisdictional Tests' 'view Sharing']

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees were two or more trees planted so as to form a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether the trees were severely obstructing a view from a dwelling situated on the applicant's land within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the severity and nature of any obstruction justified orders removing, remedying or restraining the obstruction.']

Ratio Decidendi

Although the Leyland Cypress trees were linearly arranged, exceeded 2.5m and formed a hedge to which Part 2A applied, the applicant did not satisfy s 14E(2)(a)(ii). Considering the totality of the views from the home office and kitchen, and applying Tenacity and Haindl, the obstruction caused by Tree 1 was not severe: at most the impact on the CBD view was moderate and the impact on the whole view from V1 was minor, while expansive district views remained unaffected and the kitchen views were accepted to be unaffected. Because the statutory threshold of severe obstruction was not met, the Court could not make pruning or removal orders.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']