Browne & anor v Amlee Investments [2013] NSWLEC 1221

Browne & anor v Amlee Investments [2013] NSWLEC 1221

The bamboo clumps were treated as three hedges, each satisfying the height and zoning requirements of s 14A. The rear deck was part of the dwelling. Only Hedge 1, the southernmost clump closest to the applicants' property, severely obstructed views from the rear deck and sunroom. Having considered the balancing exercise under s 14E(2)(b) and the discretionary matters in s 14F, the applicants' interest in removing the obstruction caused by Hedge 1 outweighed countervailing matters. Removal was more practical than pruning because restoring views would require a reduction by about two thirds and frequent maintenance, while Hedge 1 provided no particular privacy screening benefit. Hedges 2...

Jurisdiction
Australia
Judgment Date
20 November 2013
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Concerning a Bamboo Hedge Allegedly Obstructing Views / Principal Judgment After Hearing
Outcome
Application upheld in part; removal of one hedge; restriction of height of replacement plantings.
Legal Topics
['bamboo Hedge' 'obstruction of Views' 'view Sharing' 'removal of Trees' 'replacement Planting Height Restriction']
['environmental and Planning Law' 'neighbour Disputes' 'trees and Hedges'] ['bamboo Hedge' 'obstruction of Views' 'view Sharing' 'removal of Trees' 'replacement Planting Height Restriction']

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Concerning a Bamboo Hedge Allegedly Obstructing Views / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the bamboo clumps were groups of two or more trees planted so as to form a hedge for the purposes of Part 2A of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees in each hedge severely obstructed a view from the applicants' dwelling." "Whether the applicants' interest in removal, remedy or restraint of the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees." "Whether the rear deck was part of the applicants' dwelling for the purposes of assessing views." 'Whether removal rather than pruning was the appropriate order for Hedge 1.']

Ratio Decidendi

The bamboo clumps were treated as three hedges, each satisfying the height and zoning requirements of s 14A. The rear deck was part of the dwelling. Only Hedge 1, the southernmost clump closest to the applicants' property, severely obstructed views from the rear deck and sunroom. Having considered the balancing exercise under s 14E(2)(b) and the discretionary matters in s 14F, the applicants' interest in removing the obstruction caused by Hedge 1 outweighed countervailing matters. Removal was more practical than pruning because restoring views would require a reduction by about two thirds and frequent maintenance, while Hedge 1 provided no particular privacy screening benefit. Hedges 2...

Court Disposition

Application upheld in part; removal of one hedge; restriction of height of replacement plantings.

Orders

  • ['The application is upheld in part.' "Within 60 days of the date of these orders the respondent is to remove, or have removed, the southernmost large clump of bamboo growing on the south-western boundary of the respondent's property." 'Any regrowth is to be removed.' 'Any replacement plantings are to be maintained...