Powell v Kalantzis [2019] NSWLEC 1256

Powell v Kalantzis [2019] NSWLEC 1256

The bamboo was a hedge for Part 2A because bamboo is prescribed as a tree and the hedge exceeded 2.5 metres. Section two of the hedge severely obstructed valuable ocean views from the applicants' living areas, and pruning would restore views while retaining most privacy and amenity for the respondent, so the applicants' interest outweighed contrary matters. Section one did not severely obstruct views for Part 2A, but the bamboo was likely in the near future to cause damage to the applicants' property by hitting the roof and gutters, satisfying Part 2. Pruning and ongoing maintenance were therefore warranted, with the respondent to pay the cost.

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Class 2 Trees Dispute Between Neighbours Application Under Part 2 and Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application granted.
Legal Topics
['high Hedges' 'views' 'privacy' 'tree Pruning' 'property Damage']
['land and Environment' 'trees Disputes Between Neighbours'] ['high Hedges' 'views' 'privacy' 'tree Pruning' 'property Damage']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

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

Legal Issues

  1. 1 ["Whether the bamboo planted along the respondent's northern boundary formed a hedge for the purposes of Part 2A of the Trees (Disputes between Neighbours) Act 2006." "Whether the bamboo hedge severely obstructed a view from a dwelling situated on the applicants' land." "Whether the applicants' interest in removal, remedy or restraint of the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the bamboo." "Whether the bamboo had caused, was causing, or was likely in the near future to cause damage to the applicants' property under Part 2 of the Trees (Disputes between Neighbours) Act 2006." 'What pruning and maintenance orders should be made.']

Ratio Decidendi

The bamboo was a hedge for Part 2A because bamboo is prescribed as a tree and the hedge exceeded 2.5 metres. Section two of the hedge severely obstructed valuable ocean views from the applicants' living areas, and pruning would restore views while retaining most privacy and amenity for the respondent, so the applicants' interest outweighed contrary matters. Section one did not severely obstruct views for Part 2A, but the bamboo was likely in the near future to cause damage to the applicants' property by hitting the roof and gutters, satisfying Part 2. Pruning and ongoing maintenance were therefore warranted, with the respondent to pay the cost.

Court Disposition

Application granted.

Orders

  • ['The application is granted.' "Prune section two of the bamboo hedge growing inside the respondent's northern boundary to a height level with a point 300 mm above the applicants' veranda balustrade. This hedge height is to be uniform from the eastern property boundary to a south-facing line perpendicular with the...