Hennessy v Unsworth [2023] NSWLEC 1773

Hennessy v Unsworth [2023] NSWLEC 1773

The Court was satisfied that the applicant made a reasonable effort to reach agreement and that the hedge did not severely obstruct sunlight, but did severely obstruct the applicant's living room view. Balancing the applicant's interest in restoring the view against the respondent's privacy, amenity and landscaping interests, the Court found the hedge could be maintained at 150 mm above the relevant fence height so as to remove most of the view obstruction without adversely impacting the respondent's privacy, and therefore pruning orders should be made.

Jurisdiction
Australia
Judgment Date
20 December 2023
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
Application granted to the extent of pruning and access orders.
Legal Topics
['obstruction of Views' 'obstruction of Sunlight' 'reasonable Effort to Reach Agreement' 'hedge Pruning Orders' 'privacy and Amenity']
['land and Environment' 'trees Disputes Between Neighbours'] ['obstruction of Views' 'obstruction of Sunlight' 'reasonable Effort to Reach Agreement' 'hedge Pruning Orders' 'privacy and Amenity']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the respondent before seeking orders.' "Whether the respondent's lilly pilly hedge severely obstructed sunlight to a window of the applicant's dwelling." "Whether the respondent's lilly pilly hedge severely obstructed a view from the applicant's dwelling." "Whether the applicant's interest in remedying the obstruction outweighed matters suggesting the undesirability of interfering with the hedge, including privacy and amenity."]

Ratio Decidendi

The Court was satisfied that the applicant made a reasonable effort to reach agreement and that the hedge did not severely obstruct sunlight, but did severely obstruct the applicant's living room view. Balancing the applicant's interest in restoring the view against the respondent's privacy, amenity and landscaping interests, the Court found the hedge could be maintained at 150 mm above the relevant fence height so as to remove most of the view obstruction without adversely impacting the respondent's privacy, and therefore pruning orders should be made.

Court Disposition

Application granted to the extent of pruning and access orders.

Orders

  • ['The application is granted to the extent of the following orders.' "Twice each year in April and October, beginning April 2024, the respondent is to prune, or engage a contractor to prune, the lilly pilly hedge along their eastern boundary to a height no greater than 150 mm above the top of that part of the...