Bonner v D’Arcy [2021] NSWLEC 1329

Bonner v D’Arcy [2021] NSWLEC 1329

The application failed because the three trees were not planted so as to form a hedge: the two figs were significantly different in size indicating different planting times, it was unlikely that a hedge would comprise two evergreen figs and one deciduous box elder, and there was no sign the trees had ever been maintained as a hedge. As Pt 2A did not apply, the Court could not make the requested orders. In any event, the applicant had not shown a severe loss of views that were available when she purchased the property, because tree 2 already obstructed the relevant view in 2016 and any subsequent increase was not significant.

Jurisdiction
Australia
Judgment Date
08 June 2021
Procedural Posture
Class 2 Application Under S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 Seeking Orders in Relation to Neighbouring Trees Alleged to Obstruct Views / Principal Judgment After Onsite Hearing
Outcome
Application refused.
Legal Topics
['neighbouring Hedge' 'obstruction of Views' 'whether Trees Were Planted to Form a Hedge' 'severe View Obstruction' 'pruning Without Permission']
['trees Disputes Between Neighbours' 'land and Environment Court Jurisdiction'] ['neighbouring Hedge' 'obstruction of Views' 'whether Trees Were Planted to Form a Hedge' 'severe View Obstruction' 'pruning Without Permission']

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Procedural Posture

Class 2 Application Under S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 Seeking Orders in Relation to Neighbouring Trees Alleged to Obstruct Views / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the three trees were planted so as to form a hedge within s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees severely obstructed a view from the applicant's dwelling within s 14E(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the applicant suffered a severe loss of views that were available when she purchased her property.' "Whether corrective pruning could be ordered under Pt 2A following pruning carried out without the respondents' permission."]

Ratio Decidendi

The application failed because the three trees were not planted so as to form a hedge: the two figs were significantly different in size indicating different planting times, it was unlikely that a hedge would comprise two evergreen figs and one deciduous box elder, and there was no sign the trees had ever been maintained as a hedge. As Pt 2A did not apply, the Court could not make the requested orders. In any event, the applicant had not shown a severe loss of views that were available when she purchased the property, because tree 2 already obstructed the relevant view in 2016 and any subsequent increase was not significant.

Court Disposition

Application refused.

Orders

  • ['The application is refused.' 'The exhibits are returned, other than Exhibits A, F and 4.']