McNally v Serbos [2019] NSWLEC 1354

McNally v Serbos [2019] NSWLEC 1354

The Court found that while the hedge caused minor loss of vegetation and alleged hazard on the applicant’s land, such effects were too minor or not directly caused by the trees to justify orders under Part 2. However, the visual obstruction of views from the applicant’s deck was severe. Pruning the hedge to a height of 4.5 metres would sufficiently restore views while preserving reasonable privacy for the respondents. Therefore, orders for annual pruning were made under Part 2A.

Jurisdiction
Australia
Judgment Date
25 July 2019
Procedural Posture
Class 2 / Principal Judgment
Outcome
Part 2 application refused; Part 2A application granted with orders for pruning.
Legal Topics
['hedge' 'damage and Injury' 'obstruction of Sunlight' 'obstruction of Views' 'orders for Pruning']
['trees Disputes'] ['hedge' 'damage and Injury' 'obstruction of Sunlight' 'obstruction of Views' 'orders for Pruning']

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Procedural Posture

Class 2 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Photinia hedge caused damage to the applicant’s property' 'Whether the hedge caused injury to persons on the applicant’s land' 'Whether the hedge unreasonably obstructs sunlight to a window of a dwelling on the applicant’s land' 'Whether the hedge unreasonably obstructs an existing view from the applicant’s land']

Ratio Decidendi

The Court found that while the hedge caused minor loss of vegetation and alleged hazard on the applicant’s land, such effects were too minor or not directly caused by the trees to justify orders under Part 2. However, the visual obstruction of views from the applicant’s deck was severe. Pruning the hedge to a height of 4.5 metres would sufficiently restore views while preserving reasonable privacy for the respondents. Therefore, orders for annual pruning were made under Part 2A.

Court Disposition

Part 2 application refused; Part 2A application granted with orders for pruning.

Orders

  • ['The Part 2 application is refused.' 'The Part 2A application is granted.' 'During August 2019, and then annually during April from 2020 onwards, the respondents are to prune, or have a suitably experienced contractor prune, all Photinia trees in the hedge along their southern boundary to a height no greater than...