Unsworth v Hennessy [2024] NSWLEC 82

Unsworth v Hennessy [2024] NSWLEC 82

The Commissioner did not err in law by assessing severe obstruction under s 14E(2)(a)(ii) by reference to the likely ongoing state of the hedge rather than only its height on the hearing day. The statutory text, context, purpose, the nature of trees as living organisms, s 14F considerations, and the availability of preventive orders under s 14D supported assessment over a longer timescale. The Commissioner also had power under s 14D(1) to order pruning of all trees in the group forming the hedge once the hedge was found to severely obstruct a view. Mrs Unsworth was not denied procedural fairness because the ongoing state of affairs finding was based on evidence, including her stated...

Jurisdiction
Australia
Judgment Date
09 August 2024
Procedural Posture
Class 2 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) From a Decision on an Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Appeal Against Acting Commissioner Galwey's Decision and Orders in [2023] NSWLEC 1773, Limited to Questions of Law
Outcome
Appeal dismissed with costs.
Legal Topics
['severe Obstruction of View by Hedge' 'construction of Ss 14 D and 14 E of the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'assessment Date for Obstruction' 'scope of Pruning Orders' 'procedural Fairness']
['land and Environment' 'tree Disputes' 'property Law' 'administrative Law'] ['severe Obstruction of View by Hedge' 'construction of Ss 14 D and 14 E of the Trees (disputes Between Neighbours) Act 2006 (nsw)' 'assessment Date for Obstruction' 'scope of Pruning Orders' 'procedural Fairness']

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Procedural Posture

Class 2 Appeal Under S 56 a of the Land and Environment Court Act 1979 (nsw) From a Decision on an Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Appeal Against Acting Commissioner Galwey's Decision and Orders in [2023] NSWLEC 1773, Limited to Questions of Law

Legal Issues

  1. 1 ['Whether s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) required the Commissioner to assess severe obstruction only by reference to the state of the trees on the day of the hearing.' 'Whether the Commissioner erred under s 14D(1) by ordering pruning of all trees in the hedge rather than only trees found to cause severe obstruction of a view.' 'Whether Mrs Unsworth was denied procedural fairness because the Commissioner assessed obstruction by reference to a likely ongoing state of affairs involving a hedge approximately 200mm taller than at the hearing.']

Ratio Decidendi

The Commissioner did not err in law by assessing severe obstruction under s 14E(2)(a)(ii) by reference to the likely ongoing state of the hedge rather than only its height on the hearing day. The statutory text, context, purpose, the nature of trees as living organisms, s 14F considerations, and the availability of preventive orders under s 14D supported assessment over a longer timescale. The Commissioner also had power under s 14D(1) to order pruning of all trees in the group forming the hedge once the hedge was found to severely obstruct a view. Mrs Unsworth was not denied procedural fairness because the ongoing state of affairs finding was based on evidence, including her stated...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal is dismissed.' "The appellant is to pay the respondent's costs of the appeal."]