Pollock v Sydenham [2022] NSWLEC 1365

Pollock v Sydenham [2022] NSWLEC 1365

The Cupressus torulosa trees form a dense, wall-like hedge directly adjacent to the applicants' dwelling, causing severe and continuing obstruction of sunlight to at least four windows, including to a bedroom doubling as a daytime living space. The amenity loss to the applicants outweighs the respondent's privacy and landscape advantages, especially given alternative privacy measures available. Therefore, removal of the hedge is warranted, with works and costs to be borne by the respondent.

Parties
First Applicant: John James Pollock; Second Applicant: Leonie Helen Pollock; Respondent: Leigh Anne Sydenham
Jurisdiction
Australia
Judgment Date
13 May 2022
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006, Class 1 Proceedings / Final Judgment and Orders
Outcome
Application upheld; orders made for removal of the eleven Cupressus torulosa trees at the respondent's expense, subject to replacement and ongoing height controls.
Legal Topics
Tree Disputes, Sunlight Obstruction, Removal of High Hedges, Balancing of Amenity and Privacy, Remedying Severe Obstruction by Trees
Property Law Environmental Law Neighbour Disputes Tree Disputes Sunlight Obstruction Removal of High Hedges Balancing of Amenity and Privacy Remedying Severe Obstruction by Trees

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Parties

John James Pollock

First Applicant

Leonie Helen Pollock

Second Applicant

Leigh Anne Sydenham

Respondent

Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006, Class 1 Proceedings / Final Judgment and Orders

Legal Issues

  1. 1 Whether the Cupressus torulosa (Bhutan Cypress) trees form a 'hedge' within the meaning of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the hedge causes a severe obstruction of sunlight to windows of the applicants' dwelling
  3. 3 Whether the applicants' interests in having the obstruction removed outweigh any matters that suggest the undesirability of disturbing or interfering with the trees

Ratio Decidendi

The Cupressus torulosa trees form a dense, wall-like hedge directly adjacent to the applicants' dwelling, causing severe and continuing obstruction of sunlight to at least four windows, including to a bedroom doubling as a daytime living space. The amenity loss to the applicants outweighs the respondent's privacy and landscape advantages, especially given alternative privacy measures available. Therefore, removal of the hedge is warranted, with works and costs to be borne by the respondent.

Court Disposition

Application upheld; orders made for removal of the eleven Cupressus torulosa trees at the respondent's expense, subject to replacement and ongoing height controls.

Orders

  • The application is upheld.
  • Within 60 days of the date of these orders, the respondent, at her expense, shall remove the eleven Cupressus torulosa trees to near ground level, poison stumps and remove refuse.