The Owners of Strata Plan 4033 v Hughes [2023] NSWLEC 1007

The Owners of Strata Plan 4033 v Hughes [2023] NSWLEC 1007

The Oleander trees satisfied the statutory definition of a hedge, the applicant had given notice and made reasonable attempts to reach agreement, and although severe obstruction of sunlight was not established, the hedge severely obstructed valuable views from a second-floor dwelling toward Nobbys Headland, the lighthouse and the Pacific Ocean. After considering the discretionary factors in s 14F, the applicant's interest in remedying the view obstruction outweighed the undesirability of disturbing the hedge, but removal or cutting to 2.5 metres was not proportionate. Pruning to 2.8 metres above the respondent's natural ground level appropriately relieved the severe view obstruction while...

Jurisdiction
Australia
Judgment Date
11 January 2023
Procedural Posture
Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following on Site Hearing; Final Orders
Outcome
Application allowed in part; pruning and annual maintenance orders made, while the claim of severe sunlight obstruction and the alternative request for removal and replacement of the hedge were not accepted.
Legal Topics
['high Hedges' 'view Obstruction' 'sunlight Obstruction' 'balance Between Views and Privacy' 'pruning Orders']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['high Hedges' 'view Obstruction' 'sunlight Obstruction' 'balance Between Views and Privacy' 'pruning Orders']

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Procedural Posture

Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following on Site Hearing; Final Orders

Legal Issues

  1. 1 ['Whether the Oleander trees formed a hedge for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant gave the required notice and made a reasonable attempt to reach agreement with the respondent.' "Whether the hedge severely obstructed sunlight to a window of a dwelling on the applicant's land." "Whether the hedge severely obstructed a view from a dwelling on the applicant's land." "Whether the applicant's interest in remedying the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'What pruning or other orders were appropriate.']

Ratio Decidendi

The Oleander trees satisfied the statutory definition of a hedge, the applicant had given notice and made reasonable attempts to reach agreement, and although severe obstruction of sunlight was not established, the hedge severely obstructed valuable views from a second-floor dwelling toward Nobbys Headland, the lighthouse and the Pacific Ocean. After considering the discretionary factors in s 14F, the applicant's interest in remedying the view obstruction outweighed the undesirability of disturbing the hedge, but removal or cutting to 2.5 metres was not proportionate. Pruning to 2.8 metres above the respondent's natural ground level appropriately relieved the severe view obstruction while...

Court Disposition

Application allowed in part; pruning and annual maintenance orders made, while the claim of severe sunlight obstruction and the alternative request for removal and replacement of the hedge were not accepted.

Orders

  • ["Within 60 days of the date of these orders, the respondent, at his expense, shall prune the initial fourteen metre section of the common boundary hedge, south of where it commences in the north-west corner of the respondent's land. The hedge shall be pruned to a height not exceeding 2.8 metres above the...