Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355

Fardouly v Zeritis Issa v Zeritis [2012] NSWLEC 1355

The 15 Bhutan Cypress trees were planted in a row to form a hedge, were all more than 2.5 metres tall, and formed a solid wall up to about 11 metres high that severely obstructed high-value primary views, including filtered water views, from both applicants' dwellings. The applicants' interest in alleviating the obstruction outweighed the relatively minor privacy and amenity impacts on the respondent. Because pruning to the height needed to restore the views would harm the trees and leave them unattractive, removal of all 15 trees was the suitable outcome.

Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Class 2 Applications Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The applications were upheld; the Issa sunlight obstruction element was dismissed in the reasons.
Legal Topics
['hedge Obstruction of Views' 'severe Obstruction' 'removal of Trees' 'neighbour Disputes' 'sunlight Obstruction']
['trees Disputes Between Neighbours' 'land and Environment' 'property'] ['hedge Obstruction of Views' 'severe Obstruction' 'removal of Trees' 'neighbour Disputes' 'sunlight Obstruction']

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Procedural Posture

Class 2 Applications Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the 15 Bhutan Cypress trees formed a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applied.' "Whether the hedge severely obstructed sunlight or views from the applicants' dwellings." 'Whether the severity and nature of the obstruction outweighed reasons not to interfere with the trees.' 'Whether pruning or removal was the appropriate order.']

Ratio Decidendi

The 15 Bhutan Cypress trees were planted in a row to form a hedge, were all more than 2.5 metres tall, and formed a solid wall up to about 11 metres high that severely obstructed high-value primary views, including filtered water views, from both applicants' dwellings. The applicants' interest in alleviating the obstruction outweighed the relatively minor privacy and amenity impacts on the respondent. Because pruning to the height needed to restore the views would harm the trees and leave them unattractive, removal of all 15 trees was the suitable outcome.

Court Disposition

The applications were upheld; the Issa sunlight obstruction element was dismissed in the reasons.

Orders

  • ['The application is upheld.' 'Within 30 days of the date of these orders the respondent, Mr Zeritis, is to obtain three quotes from suitably qualified arborists (minimum AQF level 3) with all necessary insurance for the removal of the 15 Bhutan Cypress trees. The quotes are to be for the removal of the 15 trees to...