Barry v Stelzer; Barry v Lucas [2011] NSWLEC 1104

Barry v Stelzer; Barry v Lucas [2011] NSWLEC 1104

Although the Stelzer trees and the two groups of Lucas trees satisfied the hedge requirement in s 14A(1), most nominated trees did not severely obstruct the applicants' views at the time of hearing. Any severe obstruction by particular trees was limited to narrow fixed viewing positions, with the desired views opening up when moving through the dwelling and being obstructed to varying degrees by other buildings and vegetation not the subject of the applications. Privacy interests and the limited utility of intervention meant the applicants' interests did not justify orders under Part 2A, and the Court declined to order intervention with any trees.

Jurisdiction
Australia
Judgment Date
11 May 2011
Procedural Posture
Applications Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Severe Obstruction of Views by Hedges on Adjoining Land / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication
Outcome
Applications dismissed
Legal Topics
['hedges' 'obstruction of Views' 'pruning of Trees' 'jurisdiction to Make Orders Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'neighbouring Land']
['land and Environment' 'trees Disputes Between Neighbours'] ['hedges' 'obstruction of Views' 'pruning of Trees' 'jurisdiction to Make Orders Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006' 'neighbouring Land']

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Procedural Posture

Applications Under Part 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Alleged Severe Obstruction of Views by Hedges on Adjoining Land / Final Hearing; Extemporaneous Decision Revised and Edited Prior to Publication

Legal Issues

  1. 1 ['Whether the nominated trees on the Stelzer property and Lucas property were groups of two or more trees planted so as to form a hedge and rising to at least 2.5 metres for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the trees were severely obstructing a view from the applicants' dwelling for the purposes of s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the severity and nature of any obstruction meant the applicants' interest in having it removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'Whether the Court should exercise its discretion under s 14D to order pruning or other intervention with the trees.']

Ratio Decidendi

Although the Stelzer trees and the two groups of Lucas trees satisfied the hedge requirement in s 14A(1), most nominated trees did not severely obstruct the applicants' views at the time of hearing. Any severe obstruction by particular trees was limited to narrow fixed viewing positions, with the desired views opening up when moving through the dwelling and being obstructed to varying degrees by other buildings and vegetation not the subject of the applications. Privacy interests and the limited utility of intervention meant the applicants' interests did not justify orders under Part 2A, and the Court declined to order intervention with any trees.

Court Disposition

Applications dismissed

Orders

  • ['Application 20091 of 2011 is dismissed.' 'Application 20092 of 2011 is dismissed.' 'The exhibits are retained.']