Ingham v Scenna [2016] NSWLEC 1001

Ingham v Scenna [2016] NSWLEC 1001

The Court was not satisfied that the Scenna hedge caused a severe obstruction of sunlight, because any winter-solstice shading of the living room window was brief and other trees also contributed to shadowing. However, the Leyland Cypress hedge operated like a wall, caused a year-round severe obstruction of views from the applicant's living room, kitchen and rear deck, and severely affected her enjoyment of the property. The advantages to the applicant in pruning or removal outweighed the amenity and cost reasons against interference, so pruning orders were appropriate for the remaining hedge.

Jurisdiction
Australia
Judgment Date
05 January 2016
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Hedge Trees / Principal Judgment After Onsite Hearing
Outcome
The application is upheld.
Legal Topics
['hedges' 'obstruction of Views' 'obstruction of Sunlight' 'tree Pruning Orders' 'environmental Management Zoning']
['land and Environment' 'trees Disputes Between Neighbours' 'property'] ['hedges' 'obstruction of Views' 'obstruction of Sunlight' 'tree Pruning Orders' 'environmental Management Zoning']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Hedge Trees / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the Court had jurisdiction under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 in relation to hedge trees on land zoned Environmental Management.' "Whether the respondent's Leyland Cypress hedge severely obstructed sunlight to windows of the applicant's dwelling." "Whether the respondent's Leyland Cypress hedge severely obstructed views from the applicant's dwelling." "Whether the applicant's interests in remedying the obstruction outweighed reasons to avoid interfering with the trees, including landscape, environmental, amenity, privacy and cost considerations."]

Ratio Decidendi

The Court was not satisfied that the Scenna hedge caused a severe obstruction of sunlight, because any winter-solstice shading of the living room window was brief and other trees also contributed to shadowing. However, the Leyland Cypress hedge operated like a wall, caused a year-round severe obstruction of views from the applicant's living room, kitchen and rear deck, and severely affected her enjoyment of the property. The advantages to the applicant in pruning or removal outweighed the amenity and cost reasons against interference, so pruning orders were appropriate for the remaining hedge.

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 prune the remaining approximately 46 Leyland Cypress trees forming a hedge along the common boundary with the applicant's property." 'The pruning...