Murphy v Moeskops [2021] NSWLEC 1686

Murphy v Moeskops [2021] NSWLEC 1686

The five lilly pillies formed a hedge over 2.5 metres high on adjoining land, the applicants had made reasonable efforts to reach agreement, and the hedge severely obstructed both the only available winter morning sunlight to the ground-floor rear window and a valued view from the second-floor rear window. After considering the matters in s 14F, including the trees' height when the applicants purchased, privacy, landscape benefits, pruning impacts and overhanging branches, the applicants' interest in minimising the obstruction outweighed reasons to avoid interfering with the trees. Pruning and ongoing maintenance orders were therefore warranted.

Jurisdiction
Australia
Judgment Date
09 November 2021
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Sunlight and Views by Trees Forming a Hedge / Principal Judgment After Hearing
Outcome
Application granted to the extent of the pruning and maintenance orders made.
Legal Topics
['pt 2 a Application' 'obstruction of Sunlight to a Dwelling Window' 'obstruction of Views From a Dwelling' 'whether Trees Are Planted So as to Form a Hedge' 'reasonable Effort to Reach Agreement' 'pruning Orders' 'privacy and Landscape Impacts']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'property and Neighbours'] ['pt 2 a Application' 'obstruction of Sunlight to a Dwelling Window' 'obstruction of Views From a Dwelling' 'whether Trees Are Planted So as to Form a Hedge' 'reasonable Effort to Reach Agreement' 'pruning Orders' 'privacy and Landscape Impacts']

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Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Sunlight and Views by Trees Forming a Hedge / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the applicants made reasonable effort to reach agreement with the respondent before commencing proceedings.' 'Whether the five lilly pilly trees were planted on adjoining land so as to form a hedge rising to a height of at least 2.5 metres.' "Whether the trees severely obstructed sunlight to a window of the applicants' dwelling." "Whether the trees severely obstructed a view from the applicants' dwelling." "Whether the applicants' interest in mitigating the obstruction outweighed reasons to avoid interfering with the trees, having regard to the matters in s 14F of the Trees (Disputes Between Neighbours) Act 2006." 'What pruning or maintenance orders should be made.']

Ratio Decidendi

The five lilly pillies formed a hedge over 2.5 metres high on adjoining land, the applicants had made reasonable efforts to reach agreement, and the hedge severely obstructed both the only available winter morning sunlight to the ground-floor rear window and a valued view from the second-floor rear window. After considering the matters in s 14F, including the trees' height when the applicants purchased, privacy, landscape benefits, pruning impacts and overhanging branches, the applicants' interest in minimising the obstruction outweighed reasons to avoid interfering with the trees. Pruning and ongoing maintenance orders were therefore warranted.

Court Disposition

Application granted to the extent of the pruning and maintenance orders made.

Orders

  • ['The application is granted to the extent of the orders below.' "Within 30 days of the date of these orders, the respondent is to prune, or is to engage a suitably insured landscape contractor or arborist to prune, all lilly pilly trees in the hedge along the respondent's common boundary with the applicants'...