Welsh v Radford [2023] NSWLEC 1095

Welsh v Radford [2023] NSWLEC 1095

The Respondent’s hedge, comprising two large clumps of bamboo along the western boundary, had for several years severely obstructed the Applicants’ ocean views from their principal living areas and severely obstructed sunlight to a critical window. This state had existed until the Respondent’s heavy pruning prior to the hearing, but was likely to recur due to the bamboo’s growth habits. The Applicants made reasonable efforts to resolve the matter and the severity of obstruction justified making removal orders under the Trees Act. The hedge met statutory definitions, while individual distant bamboo clumps did not. The Applicants’ interest in restoring views and sunlight outweighed the...

Parties
First Applicant: Kaylyn Welsh; Second Applicant: Kurt Francis Welsh; Respondent: Carol Norma Radford
Jurisdiction
Australia
Judgment Date
03 March 2023
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 Pt 2 a / Principal Judgment After on Site Hearing
Outcome
Orders made for removal and prevention of regrowth of the bamboo hedge, with conditions on any replacement planting.
Legal Topics
Trees (disputes Between Neighbours), Obstruction of Views, Obstruction of Sunlight, Hedge Removal, Balancing of Interests Under Trees Act
Environmental Law Property Law Trees (disputes Between Neighbours) Obstruction of Views Obstruction of Sunlight Hedge Removal Balancing of Interests Under Trees Act

Case Brief

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Parties

Kaylyn Welsh

First Applicant

Kurt Francis Welsh

Second Applicant

Carol Norma Radford

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 Pt 2 a / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 Whether Respondent's bamboo hedge caused severe obstruction of views from Applicants' dwelling
  2. 2 Whether the bamboo hedge caused severe obstruction of sunlight to a window of the Applicants’ dwelling
  3. 3 Whether the hedge met the statutory threshold for orders under the Trees (Disputes between Neighbours) Act 2006 Pt 2A

Ratio Decidendi

The Respondent’s hedge, comprising two large clumps of bamboo along the western boundary, had for several years severely obstructed the Applicants’ ocean views from their principal living areas and severely obstructed sunlight to a critical window. This state had existed until the Respondent’s heavy pruning prior to the hearing, but was likely to recur due to the bamboo’s growth habits. The Applicants made reasonable efforts to resolve the matter and the severity of obstruction justified making removal orders under the Trees Act. The hedge met statutory definitions, while individual distant bamboo clumps did not. The Applicants’ interest in restoring views and sunlight outweighed the...

Court Disposition

Orders made for removal and prevention of regrowth of the bamboo hedge, with conditions on any replacement planting.

Orders

  • Within 60 days, the Respondent is to remove the large clump of Bambusa textilis var. Gracilis and the large clump of Bambusa oldhamii comprising the hedge along the western boundary.
  • The Respondent is to take any steps necessary to prevent regrowth of the bamboo hedge.