Joseph v Spencer (No 7) [2022] NSWLEC 1085

Joseph v Spencer (No 7) [2022] NSWLEC 1085

The bamboo hedge as planted by the respondents constitutes a hedge within the meaning of the Trees Act, rises over 2.5 metres, and severely obstructs a valued view from the applicant's playroom to the Minnamurra Headland and water interface. Weighing all relevant matters, including the significance of the obstructed view and the balance between privacy and amenity, the applicant's interest in remedying the obstruction outweighs the undesirability of interfering with the hedge. Accordingly, an order for removal of part of the hedge is justified.

Parties
Applicant: Michael Joseph; First Respondent: Ricardo Douglas Spencer; Second Respondent: Jennifer Gwenneth Spencer
Jurisdiction
Australia
Judgment Date
17 February 2022
Procedural Posture
Trees (disputes Between Neighbours) Application / Principal Judgment
Outcome
Application granted
Legal Topics
Neighbour Disputes, Trees Act Severe Obstruction of View, Remedies for View Obstruction, Hedge Definition, Application of Trees (disputes Between Neighbours) Act 2006
Property Law Environmental Law Neighbour Disputes Trees Act Severe Obstruction of View Remedies for View Obstruction Hedge Definition Application of Trees (disputes Between Neighbours) Act 2006

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Parties

Michael Joseph

Applicant

Ricardo Douglas Spencer

First Respondent

Jennifer Gwenneth Spencer

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Application / Principal Judgment

Legal Issues

  1. 1 Whether the bamboo hedge planted by the respondents severely obstructs a view from the applicant's dwelling within the meaning of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the severity and nature of the obstruction is such that the applicant's interest in having the obstruction remedied outweighs any reason not to interfere with the trees

Ratio Decidendi

The bamboo hedge as planted by the respondents constitutes a hedge within the meaning of the Trees Act, rises over 2.5 metres, and severely obstructs a valued view from the applicant's playroom to the Minnamurra Headland and water interface. Weighing all relevant matters, including the significance of the obstructed view and the balance between privacy and amenity, the applicant's interest in remedying the obstruction outweighs the undesirability of interfering with the hedge. Accordingly, an order for removal of part of the hedge is justified.

Court Disposition

Application granted

Orders

  • Within 21 days, the respondents must remove the two bamboo trees of the hedge growing along the southern boundary closest to the eastern boundary of their property.
  • Respondents are to take necessary steps to prevent regrowth by poisoning remaining roots from the removed bamboo trees.