Brindle and anor v Woznitza and anor [2013] NSWLEC 1005

Brindle and anor v Woznitza and anor [2013] NSWLEC 1005

The row of Leyland Cypress trees was a hedge, but sunlight was severely obstructed as a consequence of the respondents' trees only to window W2. Balancing the applicants' interest in improved solar access against the existing constraints from the trees when the applicants purchased and built, and the public and private amenity value of the hedge, justified removal of only two of the largest trees closest to the north-eastern side of the applicants' dwelling, with the applicants to contribute 40% of the removal cost.

Jurisdiction
Australia
Judgment Date
10 January 2013
Procedural Posture
Class 2 Application Under S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part; removal of two trees ordered
Legal Topics
['hedge' 'obstruction of Sunlight' 'neighbouring Trees' 'tree Removal' 'solar Access']
['land and Environment' 'trees Disputes Between Neighbours'] ['hedge' 'obstruction of Sunlight' 'neighbouring Trees' 'tree Removal' 'solar Access']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the 32 Leyland Cypress trees constituted a hedge for the purpose of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees severely obstructed sunlight to a window of the applicants' dwelling." "Whether the applicants' interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'What orders, if any, should be made for removal or pruning and allocation of costs.']

Ratio Decidendi

The row of Leyland Cypress trees was a hedge, but sunlight was severely obstructed as a consequence of the respondents' trees only to window W2. Balancing the applicants' interest in improved solar access against the existing constraints from the trees when the applicants purchased and built, and the public and private amenity value of the hedge, justified removal of only two of the largest trees closest to the north-eastern side of the applicants' dwelling, with the applicants to contribute 40% of the removal cost.

Court Disposition

Application upheld in part; removal of two trees ordered

Orders

  • ['The application is upheld in part.' 'Within 120 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove to ground level the two trees detailed in paragraph [18] of the judgment.' 'The work is to be carried out in accordance with...