Nicolson v Fekete & anor [2012] NSWLEC 1281

Nicolson v Fekete & anor [2012] NSWLEC 1281

The Leyland Cypress trees formed a hedge and severely obstructed sunlight to the applicant's windows. The applicant's interest in remedying the sunlight obstruction justified pruning, but not removal, because pruning to about 2.9m would significantly improve winter sunlight while preserving the trees and privacy. Although the trees also severely obstructed views, the affected views were ordinary views across a side boundary from limited parts of the dwelling, and the respondents' privacy and the hedge's screening function outweighed further intervention on that basis.

Jurisdiction
Australia
Judgment Date
09 October 2012
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part; removal and view-obstruction relief dismissed; pruning ordered at the respondents' expense on an annual basis.
Legal Topics
['trees and Hedges' 'obstruction of Sunlight' 'obstruction of Views' 'pruning Orders' 'balancing of Interests']
['environmental Law' 'property Law' 'neighbour Disputes'] ['trees and Hedges' 'obstruction of Sunlight' 'obstruction of Views' 'pruning Orders' 'balancing of Interests']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Leyland Cypress trees formed a hedge rising to a height of at least 2.5m for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees were severely obstructing sunlight to windows of the applicant's dwelling under s 14E(2)(a)(i)." 'Whether the severity and nature of the sunlight obstruction justified orders interfering with the trees under s 14E(2)(b), having regard to s 14F.' "Whether the trees were severely obstructing views from the applicant's dwelling under s 14E(2)(a)(ii)." 'Whether the severity and nature of the view obstruction justified further intervention with the trees or their removal.']

Ratio Decidendi

The Leyland Cypress trees formed a hedge and severely obstructed sunlight to the applicant's windows. The applicant's interest in remedying the sunlight obstruction justified pruning, but not removal, because pruning to about 2.9m would significantly improve winter sunlight while preserving the trees and privacy. Although the trees also severely obstructed views, the affected views were ordinary views across a side boundary from limited parts of the dwelling, and the respondents' privacy and the hedge's screening function outweighed further intervention on that basis.

Court Disposition

Application upheld in part; removal and view-obstruction relief dismissed; pruning ordered at the respondents' expense on an annual basis.

Orders

  • ['The application to remove the trees is dismissed.' 'Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist or horticulturist with appropriate insurance cover to reduce the eight Leyland Cypress to a height of 2.9 metres above ground level. Clean cuts must be...