Wise v Hickey [2019] NSWLEC 1524

Wise v Hickey [2019] NSWLEC 1524

The palms formed a hedge within s 14A(1), the applicant had made a reasonable attempt to reach agreement, and although the view loss from V1 was only minor and V2 was not accessible, trees T3-T5 severely obstructed the valued beach, land-water interface and ocean views from the approved granny flat/apartment living area at V3. After considering the discretionary factors in s 14F, the severity and nature of the obstruction outweighed matters against interfering with the trees, and the ordinary position that successful orders are carried out at the respondents' cost applied.

Jurisdiction
Australia
Judgment Date
06 November 2019
Procedural Posture
Class 2 Application Under S 14 B of Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges and View Obstruction / Principal Judgment After on Site Hearing
Outcome
The application is granted.
Legal Topics
['high Hedges' 'view Obstruction' 'jurisdictional Requirements Under Part 2 A' 'neighbour Disputes' 'tree Removal Orders']
['environmental and Planning Law' 'trees Disputes Between Neighbours'] ['high Hedges' 'view Obstruction' 'jurisdictional Requirements Under Part 2 A' 'neighbour Disputes' 'tree Removal Orders']

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Procedural Posture

Class 2 Application Under S 14 B of Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges and View Obstruction / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the Bangalow palms formed a hedge within s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant made a reasonable attempt to reach agreement with the respondents under s 14E(1)(a).' "Whether the trees were severely obstructing a view from a dwelling on the applicant's land under s 14E(2)(a)(ii)." "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)." 'Who should bear the cost of carrying out any orders.']

Ratio Decidendi

The palms formed a hedge within s 14A(1), the applicant had made a reasonable attempt to reach agreement, and although the view loss from V1 was only minor and V2 was not accessible, trees T3-T5 severely obstructed the valued beach, land-water interface and ocean views from the approved granny flat/apartment living area at V3. After considering the discretionary factors in s 14F, the severity and nature of the obstruction outweighed matters against interfering with the trees, and the ordinary position that successful orders are carried out at the respondents' cost applied.

Court Disposition

The application is granted.

Orders

  • ['The application is granted.' 'The respondents are to engage and pay for an Australian Qualification Framework (AQF) level 3 arborist, with all appropriate insurances, to remove palms T2, T4 and T5 and the smaller stem belonging to T3.' "The works must be undertaken in accordance with the Safe Work Australia 'Guide...