MacCulloch & anor v Hutchinson & anor [2014] NSWLEC 1022

MacCulloch & anor v Hutchinson & anor [2014] NSWLEC 1022

The hedge caused a severe obstruction of remaining winter sunlight to the applicants' downstairs living area windows W6 to W8, particularly from trees T2-T11, and the benefit to the applicants of annual pruning outweighed the minimal impact on the respondents' privacy; therefore orders were justified requiring annual April pruning to specified average heights while allowing the respondents to maintain the hedge in three horizontal sections.

Jurisdiction
Australia
Judgment Date
13 February 2014
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
The application was upheld in part.
Legal Topics
['hedge' 'obstruction of Sunlight' 'pruning Orders' 'neighbouring Property Privacy']
['land and Environment' 'tree Disputes Between Neighbours'] ['hedge' 'obstruction of Sunlight' 'pruning Orders' 'neighbouring Property Privacy']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the row of 14 Leyland Cypress trees satisfied the jurisdictional tests for a hedge under s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees caused a severe obstruction of sunlight to the applicants' dwelling sufficient to justify orders under s 14E(2) of the Trees (Disputes Between Neighbours) Act 2006." 'What pruning orders, if any, should be made having regard to the matters in s 14F of the Trees (Disputes Between Neighbours) Act 2006, including privacy, amenity and impacts on the trees.']

Ratio Decidendi

The hedge caused a severe obstruction of remaining winter sunlight to the applicants' downstairs living area windows W6 to W8, particularly from trees T2-T11, and the benefit to the applicants of annual pruning outweighed the minimal impact on the respondents' privacy; therefore orders were justified requiring annual April pruning to specified average heights while allowing the respondents to maintain the hedge in three horizontal sections.

Court Disposition

The application was upheld in part.

Orders

  • ['Beginning 2014, each and every year during the month of April the respondents are to organise and pay for a suitably qualified horticulturist or arborist, with appropriate insurance, to prune the row of 14 Leyland Cypress trees.' 'T2 to T5 are to be pruned to an average height of 3 metres, measured at the centre...