Carter v Capito & anor [2017] NSWLEC 1740

Carter v Capito & anor [2017] NSWLEC 1740

The cypress hedge constitutes a severe obstruction of view under s 14E(2) of the Trees Act. Annual pruning to 3.0 metres will restore the applicant's view while maintaining most of respondents' privacy, and such pruning should be carried out by a suitably qualified arborist in accordance with safety codes.

Parties
Applicant: Norman Carter; First Respondent: Alfonso Capito; Second Respondent: Maria Capito
Jurisdiction
Australia
Judgment Date
20 December 2017
Procedural Posture
Trees (disputes Between Neighbours) Application / Final Decision and Orders
Outcome
Application upheld
Legal Topics
Tree Disputes, Obstruction of Views, Privacy Balancing, Annual Pruning Orders
Environmental Law Tree Disputes Obstruction of Views Privacy Balancing Annual Pruning Orders

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Parties

Norman Carter

Applicant

Alfonso Capito

First Respondent

Maria Capito

Second Respondent

Procedural Posture

Trees (disputes Between Neighbours) Application / Final Decision and Orders

Legal Issues

  1. 1 Whether the cypress hedge severely obstructs views from the applicant's dwelling
  2. 2 What pruning orders should be made to balance restoration of views and maintenance of respondents' privacy

Ratio Decidendi

The cypress hedge constitutes a severe obstruction of view under s 14E(2) of the Trees Act. Annual pruning to 3.0 metres will restore the applicant's view while maintaining most of respondents' privacy, and such pruning should be carried out by a suitably qualified arborist in accordance with safety codes.

Court Disposition

Application upheld

Orders

  • Within 60 days, and then annually in November starting November 2018, respondents to engage a qualified arborist (AQF level 3 minimum) with insurance to prune each tree in the hedge to a height no greater than 3.0 metres above its base and remove debris from applicant's property.
  • Works to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.