Johns v Breuer [2012] NSWLEC 1095

Johns v Breuer [2012] NSWLEC 1095

The Leyland Cypress trees (T2,3,4,6,7,8) and Celtis T5 cause a severe obstruction to the applicant’s views and, in balancing the parties’ interests and the discretionary considerations under s 14F, the applicant’s interests in restoring the view outweigh the undesirability of tree interference. Orders for removal and replacement with manageable species maintained at a specified height are warranted; compensation and cost-sharing directions are appropriate.

Jurisdiction
Australia
Judgment Date
17 April 2012
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Hearing and Final Orders
Outcome
Application upheld in part
Legal Topics
['trees (disputes Between Neighbours) Act 2006' 'view Obstruction' 'removal and Maintenance of Trees' 'neighbour Disputes' 'orders Regarding Trees' 'balance of Interests in Tree Disputes']
['property Law' 'environmental Law'] ['trees (disputes Between Neighbours) Act 2006' 'view Obstruction' 'removal and Maintenance of Trees' 'neighbour Disputes' 'orders Regarding Trees' 'balance of Interests in Tree Disputes']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Hearing and Final Orders

Legal Issues

  1. 1 ["Whether the trees on the respondent's property severely obstruct the applicant's views as defined under Part 2A of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the obstruction warrants orders for removal and replacement of trees' 'Whether balance of interests favours intervention under the statutory regime']

Ratio Decidendi

The Leyland Cypress trees (T2,3,4,6,7,8) and Celtis T5 cause a severe obstruction to the applicant’s views and, in balancing the parties’ interests and the discretionary considerations under s 14F, the applicant’s interests in restoring the view outweigh the undesirability of tree interference. Orders for removal and replacement with manageable species maintained at a specified height are warranted; compensation and cost-sharing directions are appropriate.

Court Disposition

Application upheld in part

Orders

  • ['Within 60 days, respondent to engage AQF level 3 arborist to remove Leyland Cypress T2,3,4,6,7,8 and Celtis T5, stumps ground to 200mm below grade.' 'Works carried out per WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'Applicant to provide access for works on three working days’ notice.' 'Within...