Gulli v George [2023] NSWLEC 1328

Gulli v George [2023] NSWLEC 1328

The Viburnum trees were planted in a row to form a hedge exceeding 2.5 metres on adjoining land, the applicant made reasonable efforts to resolve the dispute and gave notice, and the hedge at about 6.5 metres severely obstructed sunlight to W1 for extended periods of the year. After considering the matters in s 14F, the applicant's interest in remedying that severe obstruction outweighed the undesirability of pruning, while the respondents' privacy interests justified different pruning heights north and south of the Avocado tree. The Avocado tree was not part of the hedge and Pt 2A gave no jurisdiction to order intervention with it solely because it obstructed sunlight.

Jurisdiction
Australia
Judgment Date
27 June 2023
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning High Hedges / Principal Judgment After Onsite Hearing
Outcome
Pruning orders made for the Viburnum hedge; no orders made for removal or pruning of the Avocado tree.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight to a Window' 'pruning Orders' 'statutory Jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'balancing Privacy and Sunlight Access']
['trees Disputes Between Neighbours' 'land and Environment' 'neighbour Disputes'] ['high Hedges' 'severe Obstruction of Sunlight to a Window' 'pruning Orders' 'statutory Jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'balancing Privacy and Sunlight Access']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Viburnum trees formed a hedge to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' 'Whether the applicant made a reasonable effort to reach agreement and gave notice of the application.' "Whether the hedge severely obstructed sunlight to W1 or W2 of the applicant's dwelling." "Whether the applicant's interest in having the obstruction remedied outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'Whether the Avocado tree was part of the hedge or could be the subject of orders for obstruction of sunlight under Pt 2A.']

Ratio Decidendi

The Viburnum trees were planted in a row to form a hedge exceeding 2.5 metres on adjoining land, the applicant made reasonable efforts to resolve the dispute and gave notice, and the hedge at about 6.5 metres severely obstructed sunlight to W1 for extended periods of the year. After considering the matters in s 14F, the applicant's interest in remedying that severe obstruction outweighed the undesirability of pruning, while the respondents' privacy interests justified different pruning heights north and south of the Avocado tree. The Avocado tree was not part of the hedge and Pt 2A gave no jurisdiction to order intervention with it solely because it obstructed sunlight.

Court Disposition

Pruning orders made for the Viburnum hedge; no orders made for removal or pruning of the Avocado tree.

Orders

  • ["Within 40 days of the date of these orders, the respondents, at their expense, shall have contractors prune the Viburnum trees growing adjacent to the common boundary and south of the Avocado tree's trunk (Hedge 1) to a height no higher than 4.3 metres above natural ground level, and prune the Viburnum trees...