North & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339

North & anor v Andrews; North & anor v Cortis & anor [2011] NSWLEC 1339

The trees on the Andrews property, and all but two trees (T1 and T2) on the Cortis property, do not meet the statutory test of being planted so as to form a hedge per s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006. Of the two trees on the Cortis property that do form a hedge, their obstruction of the applicants' view is moderate, not severe, and thus fails the threshold for relief under s 14E(2)(a)(ii). As such, the Court has no jurisdiction to order pruning or maintenance as sought.

Parties
Applicants: I & L North; Respondent: Mrs K Andrews; Respondents: S & S Cortis
Jurisdiction
Australia
Judgment Date
29 November 2011
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006, Part 2 a / Principal Judgment
Outcome
Applications dismissed
Legal Topics
Trees and Vegetation, Obstruction of Views, Jurisdictional Tests Under Trees Act, Hedge Definition, Severe Obstruction
Property Law Environmental Law Neighbour Disputes Trees and Vegetation Obstruction of Views Jurisdictional Tests Under Trees Act Hedge Definition Severe Obstruction

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Parties

I & L North

Applicants

Mrs K Andrews

Respondent

S & S Cortis

Respondents

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006, Part 2 a / Principal Judgment

Legal Issues

  1. 1 Whether the trees on the respondents' properties are planted so as to form a hedge under s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the trees (if a hedge) are severely obstructing a view from a dwelling on the applicants’ land under s 14E(2)(a)(ii)
  3. 3 Whether the obstruction, if severe, justifies intervention under the balancing test in s 14E(2)(b) and s 14F

Ratio Decidendi

The trees on the Andrews property, and all but two trees (T1 and T2) on the Cortis property, do not meet the statutory test of being planted so as to form a hedge per s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006. Of the two trees on the Cortis property that do form a hedge, their obstruction of the applicants' view is moderate, not severe, and thus fails the threshold for relief under s 14E(2)(a)(ii). As such, the Court has no jurisdiction to order pruning or maintenance as sought.

Court Disposition

Applications dismissed

Orders

  • Application 20689 of 2011 is dismissed.
  • Application 20690 of 2011 is dismissed.