Kenney-Herbert v Humble & anor [2013] NSWLEC 1219

Kenney-Herbert v Humble & anor [2013] NSWLEC 1219

Although some trees in the hedge do severely obstruct sunlight to W1 and W2 part of the year, the applicant's interest in pruning does not outweigh the undesirability of disturbing/interfering with the trees given privacy, lack of evidence on effect, impact on tree health, and the majority of the shading caused by structures and fence rather than the hedge. Section 14E(2)(b) of the Act is not satisfied and Court's power to make orders under s 14D is not engaged.

Jurisdiction
Australia
Judgment Date
15 November 2013
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment
Outcome
Application dismissed
Legal Topics
['trees and Hedges' 'obstruction of Sunlight' 'neighbour Disputes']
['property Law' 'environmental Law'] ['trees and Hedges' 'obstruction of Sunlight' 'neighbour Disputes']

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Final Judgment

Legal Issues

  1. 1 ["Whether the hedge on the respondents' property severely obstructs sunlight to the applicant's dwelling windows in a manner remediable under the Trees (Disputes Between Neighbours) Act 2006" 'Whether the court has jurisdiction to make orders for pruning or reduction of the hedge' 'Whether a reasonable effort to reach agreement has been made' "Whether the applicant's interest in sunlight removal outweighs other factors"]

Ratio Decidendi

Although some trees in the hedge do severely obstruct sunlight to W1 and W2 part of the year, the applicant's interest in pruning does not outweigh the undesirability of disturbing/interfering with the trees given privacy, lack of evidence on effect, impact on tree health, and the majority of the shading caused by structures and fence rather than the hedge. Section 14E(2)(b) of the Act is not satisfied and Court's power to make orders under s 14D is not engaged.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.' 'Exhibit 1 is returned.']