Whitty v Shearman & Anor [2017] NSWLEC 1560

Whitty v Shearman & Anor [2017] NSWLEC 1560

Reduction in the height of the Leyland Cypress hedge by 500mm, returning it to the level achieved at the last pruning event (November 2016), is warranted to ameliorate severe obstruction of sunlight to W1 and W2 and partial obstruction of views. Greater reduction would risk tree health disproportionately; privacy interests of the respondents do not bar the modest reduction ordered. Court lacks jurisdiction to order works concerning the Banksia.

Parties
Applicant: Jeremy Whitty; Respondents: Peter & Bettina Shearman
Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Class 2 Application / Judgment After Hearing
Outcome
Orders made requiring pruning of 11 Leyland Cypress trees to prior pruning level and ongoing biannual maintenance, at respondents' expense.
Legal Topics
Obstruction of Sunlight, Obstruction of Views, Trees (disputes Between Neighbours) Act 2006, Hedge Disputes, Balancing of Interests, Arboricultural Evidence
Environmental Law Property Law Obstruction of Sunlight Obstruction of Views Trees (disputes Between Neighbours) Act 2006 Hedge Disputes Balancing of Interests Arboricultural Evidence

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Parties

Jeremy Whitty

Applicant

Peter & Bettina Shearman

Respondents

Procedural Posture

Class 2 Application / Judgment After Hearing

Legal Issues

  1. 1 Whether the Leyland Cypress hedge is severely obstructing sunlight to windows and views from the applicant's dwelling within the meaning of Part 2A of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the Banksia and other trees are within jurisdiction
  3. 3 Whether pruning is a suitable and proportionate remedy balancing interests of both parties

Ratio Decidendi

Reduction in the height of the Leyland Cypress hedge by 500mm, returning it to the level achieved at the last pruning event (November 2016), is warranted to ameliorate severe obstruction of sunlight to W1 and W2 and partial obstruction of views. Greater reduction would risk tree health disproportionately; privacy interests of the respondents do not bar the modest reduction ordered. Court lacks jurisdiction to order works concerning the Banksia.

Court Disposition

Orders made requiring pruning of 11 Leyland Cypress trees to prior pruning level and ongoing biannual maintenance, at respondents' expense.

Orders

  • Within 30 days, respondents to engage and pay for a suitably qualified arborist to prune the 11 Leyland Cypress trees to the level of the stubs from the November 2016 pruning (3.5m above the top of the wall) and remove debris from applicant's property.
  • Works to be carried out according to relevant safety standards.