Ho v Warczak [2015] NSWLEC 1020

Ho v Warczak [2015] NSWLEC 1020

The trees formed a hedge to which Part 2A applied and severely obstructed the harbour view from the applicant's living room and adjoining terrace. The agreed stepped pruning would restore the main view corridor while retaining a reasonable level of privacy for the respondent, so the requirements of s 14E(2) were met and the Court had jurisdiction to make the consent orders under s 14D.

Jurisdiction
Australia
Judgment Date
16 February 2015
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal or Pruning of Trees / Consent Orders at Hearing
Outcome
Application upheld
Legal Topics
['hedge Obstructing Views' 'pruning of Trees' 'consent Orders' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006']
['land and Environment' 'trees Disputes Between Neighbours'] ['hedge Obstructing Views' 'pruning of Trees' 'consent Orders' 'jurisdiction Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006']

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 for Orders Seeking Removal or Pruning of Trees / Consent Orders at Hearing

Legal Issues

  1. 1 ['Whether the trees were trees to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether the trees were severely obstructing a view from a dwelling situated on the applicant's land." "Whether the applicant's interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees." "Whether the Court's jurisdiction to make orders under s 14D was engaged."]

Ratio Decidendi

The trees formed a hedge to which Part 2A applied and severely obstructed the harbour view from the applicant's living room and adjoining terrace. The agreed stepped pruning would restore the main view corridor while retaining a reasonable level of privacy for the respondent, so the requirements of s 14E(2) were met and the Court had jurisdiction to make the consent orders under s 14D.

Court Disposition

Application upheld

Orders

  • ['The respondent is to prune, up to 2 times per year at not less than 5 month intervals, the 4 Conifer trees located in Location 1 on the plan so that they do not exceed the heights shown on the plan.' 'The respondent is to prune, within 45 days, the 6 Conifer trees in Location 2 on the plan to the heights shown on...