Brown v Beirne [2021] NSWLEC 1397

Brown v Beirne [2021] NSWLEC 1397

The five lilly pillies formed a hedge to which Pt 2A applied, the applicant had made reasonable efforts to resolve the dispute, and the hedge severely obstructed sunlight to the studio window during much of the limited period when sunlight was available in winter and at the equinox. Privacy, amenity, garden symmetry and the adverse effects of topping did not outweigh the applicant's interest in mitigating the obstruction. Severe pruning was undesirable, but removing the two westernmost trees was necessary to remedy and prevent the obstruction because removing only the westernmost tree would likely allow the adjacent tree to grow into the gap and recreate the impact.

Jurisdiction
Australia
Judgment Date
09 July 2021
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Hedge Obstructing Sunlight / Principal Judgment After Onsite Hearing
Outcome
Application granted to the extent of the orders made.
Legal Topics
['neighbouring Hedge' 'lilly Pilly Trees' 'obstruction of Sunlight to a Dwelling Window' 'privacy and Amenity' 'tree Removal Orders']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['neighbouring Hedge' 'lilly Pilly Trees' 'obstruction of Sunlight to a Dwelling Window' 'privacy and Amenity' 'tree Removal Orders']

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Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a Neighbouring Hedge Obstructing Sunlight / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the five Syzygium floribunda planted near the boundary formed a hedge of at least 2.5 metres to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' 'Whether the applicant made reasonable effort to reach agreement with the respondents.' "Whether the hedge severely obstructed sunlight to a window of the applicant's dwelling." "Whether the applicant's interest in mitigating the obstruction outweighed reasons to avoid interfering with the trees, including privacy, amenity and the response of the trees to pruning." 'What orders should be made to remedy, restrain or prevent the severe obstruction of sunlight.']

Ratio Decidendi

The five lilly pillies formed a hedge to which Pt 2A applied, the applicant had made reasonable efforts to resolve the dispute, and the hedge severely obstructed sunlight to the studio window during much of the limited period when sunlight was available in winter and at the equinox. Privacy, amenity, garden symmetry and the adverse effects of topping did not outweigh the applicant's interest in mitigating the obstruction. Severe pruning was undesirable, but removing the two westernmost trees was necessary to remedy and prevent the obstruction because removing only the westernmost tree would likely allow the adjacent tree to grow into the gap and recreate the impact.

Court Disposition

Application granted to the extent of the orders made.

Orders

  • ['The application is granted, to the extent of the orders below.' "Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the two trees at the western end of the hedge near their southern...