Morgan v Bennett [2022] NSWLEC 1744

Morgan v Bennett [2022] NSWLEC 1744

Although the boundary trees satisfied the hedge requirements in s 14A(1), by the time of the hearing they had been heavily pruned to between about 3.2 metres and 4.7 metres high. The Court was not satisfied that the hedge was severely obstructing sunlight to a window of the Applicant's dwelling; the obstruction was primarily caused by the large Brush Box tree, which was not part of the hedge, and by the Applicant's broad roof eaves. Because the jurisdictional requirement for severe obstruction by the hedge was not met, the Court had no power to make the pruning orders sought and refused the application.

Jurisdiction
Australia
Judgment Date
10 November 2022
Procedural Posture
Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Final Orders
Outcome
The application is refused.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight to Windows' 'jurisdictional Requirements Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'tree Pruning' 'falling Leaves and Tree Debris']
['trees Disputes Between Neighbours' 'land and Environment'] ['high Hedges' 'severe Obstruction of Sunlight to Windows' 'jurisdictional Requirements Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'tree Pruning' 'falling Leaves and Tree Debris']

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Procedural Posture

Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Onsite Hearing and Final Orders

Legal Issues

  1. 1 ['Whether the trees formed a hedge to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the hedge was severely obstructing sunlight to a window of the Applicant's dwelling at the time of the hearing." "Whether obstruction of sunlight was primarily caused by the hedge or by other factors including the Brush Box tree and the Applicant's broad roof eaves." 'Whether falling leaves and tree debris provided a basis for orders under the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

Although the boundary trees satisfied the hedge requirements in s 14A(1), by the time of the hearing they had been heavily pruned to between about 3.2 metres and 4.7 metres high. The Court was not satisfied that the hedge was severely obstructing sunlight to a window of the Applicant's dwelling; the obstruction was primarily caused by the large Brush Box tree, which was not part of the hedge, and by the Applicant's broad roof eaves. Because the jurisdictional requirement for severe obstruction by the hedge was not met, the Court had no power to make the pruning orders sought and refused the application.

Court Disposition

The application is refused.

Orders

  • ['The application is refused.']