Zhang v Davidson [2020] NSWLEC 1030

Zhang v Davidson [2020] NSWLEC 1030

Although the hedge severely obstructed a view from the basement level, the basement rooms were not principal living areas and there was no evidence that significant views had previously been available from that level, so no orders would be made on that basis. The Court rejected the applicant's construction that severe obstruction of one view permits orders for a different view. The evidence showed that the ground-floor living area views were not severely obstructed and that the hedge was being maintained so that severe obstruction was unlikely to continue or recur. Because there was no severe obstruction of the ground-floor views and no relevant unresolved dispute about hedge maintenance,...

Jurisdiction
Australia
Judgment Date
10 January 2020
Procedural Posture
Class 2 Application Under S 14 B (part 2 A) of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning a Hedge Allegedly Obstructing Views / Principal Judgment After Onsite Hearing
Outcome
Application refused.
Legal Topics
['hedge Obstruction of Views' 'severe Obstruction of View' 'jurisdiction to Make Orders Under Part 2 a of the Trees Act' 'view Sharing']
['trees Disputes' 'land and Environment' 'neighbour Disputes'] ['hedge Obstruction of Views' 'severe Obstruction of View' 'jurisdiction to Make Orders Under Part 2 a of the Trees Act' 'view Sharing']

Case Brief

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Procedural Posture

Class 2 Application Under S 14 B (part 2 A) of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning a Hedge Allegedly Obstructing Views / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the Leyland cypress trees formed a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) applied.' 'Whether the applicant made a reasonable effort to reach agreement before orders could be made.' "Whether the trees severely obstructed a view from the basement level of the applicant's dwelling and whether orders should be made on that basis." 'Whether a finding of severe obstruction of one view enables the Court to make orders addressing a different view from the dwelling.' "Whether the trees were severely obstructing a view from the ground-floor living areas of the applicant's dwelling." 'Whether orders should be made to ensure future maintenance of the hedge at an agreed height.']

Ratio Decidendi

Although the hedge severely obstructed a view from the basement level, the basement rooms were not principal living areas and there was no evidence that significant views had previously been available from that level, so no orders would be made on that basis. The Court rejected the applicant's construction that severe obstruction of one view permits orders for a different view. The evidence showed that the ground-floor living area views were not severely obstructed and that the hedge was being maintained so that severe obstruction was unlikely to continue or recur. Because there was no severe obstruction of the ground-floor views and no relevant unresolved dispute about hedge maintenance,...

Court Disposition

Application refused.

Orders

  • ['The application is refused.']