Owners of Strata Plan 4015 v Mizrachi [2024] NSWLEC 1304

Owners of Strata Plan 4015 v Mizrachi [2024] NSWLEC 1304

The bamboo consisted of about 10 planted clumps in a row along the common boundary, was about 7 metres high, and formed a wall-like hedge within s 14A(1). The applicant had served the required documents and made reasonable efforts to reach agreement. The hedge severely obstructed valuable Pacific Ocean views from first-floor living areas and severely obstructed sunlight to window W6. After considering the matters in s 14F, the applicant's interest in remedying the severe obstruction outweighed the respondents' interests in retaining the hedge at its current height, but removal would unreasonably compromise the respondents' privacy. Pruning to 3.5 metres above the respondents' pool coping...

Jurisdiction
Australia
Judgment Date
07 June 2024
Procedural Posture
Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a High Hedge / Principal Judgment After on Site Hearing
Outcome
Application allowed in part; pruning and maintenance orders made for the bamboo hedge, with removal not ordered.
Legal Topics
['high Hedges' 'bamboo Hedge' 'view Obstruction' 'sunlight Obstruction' 'pruning Orders' 'neighbouring Land']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'environmental Planning'] ['high Hedges' 'bamboo Hedge' 'view Obstruction' 'sunlight Obstruction' 'pruning Orders' 'neighbouring Land']

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Procedural Posture

Class 2 Application Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning a High Hedge / Principal Judgment After on Site Hearing

Legal Issues

  1. 1 ['Whether the bamboo was a hedge for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant satisfied the service and reasonable-effort requirements in ss 14C and 14E(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the bamboo hedge severely obstructed views from dwellings on the applicant's land within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the bamboo hedge severely obstructed sunlight to a window of a dwelling on the applicant's land within s 14E(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006." "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." 'What orders should be made, including whether removal or pruning was appropriate.']

Ratio Decidendi

The bamboo consisted of about 10 planted clumps in a row along the common boundary, was about 7 metres high, and formed a wall-like hedge within s 14A(1). The applicant had served the required documents and made reasonable efforts to reach agreement. The hedge severely obstructed valuable Pacific Ocean views from first-floor living areas and severely obstructed sunlight to window W6. After considering the matters in s 14F, the applicant's interest in remedying the severe obstruction outweighed the respondents' interests in retaining the hedge at its current height, but removal would unreasonably compromise the respondents' privacy. Pruning to 3.5 metres above the respondents' pool coping...

Court Disposition

Application allowed in part; pruning and maintenance orders made for the bamboo hedge, with removal not ordered.

Orders

  • ["Within 30 days of the date of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to their western boundary, to a height not exceeding 3.5 metres above the level of the respondents' swimming pool coping." "During November 2024, and during May and November of each...