Kennard v Fite [2019] NSWLEC 1327

Kennard v Fite [2019] NSWLEC 1327

The sixteen Leyland Cypress trees formed a hedge within s 14A(1), were directly next door, were tall and dense like a wall, and severely obstructed the applicant's water views from living areas that existed when she purchased the property. Although the applicant's interest in regaining views justified intervention, removal was not warranted because competing considerations favoured retention, including privacy, landscape and public amenity, soil stability and the ability to remedy the obstruction through pruning. The proper balance was achieved by ordering pruning and ongoing height maintenance, with the respondents to bear the cost because they had resisted pruning despite awareness of...

Jurisdiction
Australia
Judgment Date
12 July 2019
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges / Principal Judgment After Onsite Hearing
Outcome
Application granted; pruning and maintenance orders made against the First Respondent and the Second Respondent.
Legal Topics
['high Hedges' 'view Obstruction' 'privacy' 'tree Pruning Orders' 'neighbour Disputes']
['trees Disputes Between Neighbours' 'environmental and Planning Law' 'property Law'] ['high Hedges' 'view Obstruction' 'privacy' 'tree Pruning Orders' 'neighbour Disputes']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees were planted so as to form a hedge and rose to a height of at least 2.5 metres for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedge severely obstructed a view from the applicant's dwelling within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the applicant's interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b) and s 14F of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the appropriate remedy was removal of the hedge or pruning and ongoing height maintenance, and who should bear the cost.']

Ratio Decidendi

The sixteen Leyland Cypress trees formed a hedge within s 14A(1), were directly next door, were tall and dense like a wall, and severely obstructed the applicant's water views from living areas that existed when she purchased the property. Although the applicant's interest in regaining views justified intervention, removal was not warranted because competing considerations favoured retention, including privacy, landscape and public amenity, soil stability and the ability to remedy the obstruction through pruning. The proper balance was achieved by ordering pruning and ongoing height maintenance, with the respondents to bear the cost because they had resisted pruning despite awareness of...

Court Disposition

Application granted; pruning and maintenance orders made against the First Respondent and the Second Respondent.

Orders

  • ['The application is granted.' 'Within 60 days of these orders, the First Respondent and the Second Respondent must prune trees 1, 1.1, 2, 3, 4, 5, 6, 7 and 9, as identified in the Howden Report, to a height that is one metre below the height line, and subsequently maintain these trees at all times below the height...