Marshall v Markovits & anor [2017] NSWLEC 1030

Marshall v Markovits & anor [2017] NSWLEC 1030

Although the Bhutan Cypress formed a hedge to which Part 2A applied, the obstruction caused by the Markovits' trees was not severe. The obstructed views were district views rather than water or iconic views, harbour views remained clearly available from the principal living area, and the observed obstruction was moderate. Because s 14E(2)(a)(ii) was not satisfied, the Court could only dismiss the application.

Jurisdiction
Australia
Judgment Date
30 January 2017
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment
Outcome
Application dismissed
Legal Topics
['hedge' 'obstruction of Views' 'severe Obstruction Threshold' 'pruning Orders']
['trees Disputes Between Neighbours' 'neighbour Law' 'property Law'] ['hedge' 'obstruction of Views' 'severe Obstruction Threshold' 'pruning Orders']

Case Brief

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Procedural Posture

Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment

Legal Issues

  1. 1 ["Whether the row of Cupressus torulosa (Bhutan Cypress) on the respondents' property were trees to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applies." "Whether the respondents' trees were severely obstructing a view from a dwelling situated on the applicant's land within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the Court's power to make pruning and maintenance orders was engaged."]

Ratio Decidendi

Although the Bhutan Cypress formed a hedge to which Part 2A applied, the obstruction caused by the Markovits' trees was not severe. The obstructed views were district views rather than water or iconic views, harbour views remained clearly available from the principal living area, and the observed obstruction was moderate. Because s 14E(2)(a)(ii) was not satisfied, the Court could only dismiss the application.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']