Ingham v Pettigrew [2016] NSWLEC 1002

Ingham v Pettigrew [2016] NSWLEC 1002

The respondent's Leyland Cypress hedge was planted as a hedge, exceeded 2.5 metres, was approximately 16 metres tall, dense and close to the applicant's dwelling, and caused severe obstruction of winter afternoon sunlight to the applicant's kitchen and living room windows and severe obstruction of views from her dwelling. Having considered the matters in s 14F, including amenity, environmental value, privacy, pruning impacts and the applicant's prior enjoyment of sunlight and views, the applicant's interests in remedying the severe obstruction outweighed reasons to avoid interfering with the hedge. Removal of the southern half, replacement planting, and pruning and maintenance of the...

Jurisdiction
Australia
Judgment Date
05 January 2016
Procedural Posture
Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Obstruction of Sunlight and Views by a Neighbouring Hedge / Principal Judgment After Onsite Hearing; Application Upheld and Orders Made
Outcome
The application is upheld.
Legal Topics
['hedges' 'obstruction of Sunlight' 'obstruction of Views' 'tree Pruning Orders' 'tree Removal Orders' 'environmental Management Zoning']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'environmental Planning'] ['hedges' 'obstruction of Sunlight' 'obstruction of Views' 'tree Pruning Orders' 'tree Removal Orders' 'environmental Management Zoning']

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Procedural Posture

Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Obstruction of Sunlight and Views by a Neighbouring Hedge / Principal Judgment After Onsite Hearing; Application Upheld and Orders Made

Legal Issues

  1. 1 ['Whether the Court had jurisdiction where the properties were designated Environmental Management zones rather than expressly residential zones.' "Whether the Leyland Cypress hedge severely obstructed sunlight to windows of the applicant's dwelling." "Whether the Leyland Cypress hedge severely obstructed views from the applicant's dwelling." 'Whether, after considering the matters in s 14F of the Trees (Disputes Between Neighbours) Act 2006, orders should be made for pruning, removal and replacement of trees.']

Ratio Decidendi

The respondent's Leyland Cypress hedge was planted as a hedge, exceeded 2.5 metres, was approximately 16 metres tall, dense and close to the applicant's dwelling, and caused severe obstruction of winter afternoon sunlight to the applicant's kitchen and living room windows and severe obstruction of views from her dwelling. Having considered the matters in s 14F, including amenity, environmental value, privacy, pruning impacts and the applicant's prior enjoyment of sunlight and views, the applicant's interests in remedying the severe obstruction outweighed reasons to avoid interfering with the hedge. Removal of the southern half, replacement planting, and pruning and maintenance of the...

Court Disposition

The application is upheld.

Orders

  • ["Within 60 days of the date of the orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the 38 trees comprising the southern half of the Leyland Cypress hedge along the common boundary with the applicant's property." 'Within 6...