Issa v Dugandzic; Fardouly v Dugandzic [2020] NSWLEC 1605

Issa v Dugandzic; Fardouly v Dugandzic [2020] NSWLEC 1605

The applicants made reasonable effort to reach agreement. The cypress hedge was planted as a hedge and had severely obstructed valued water views before being pruned, and without maintenance was likely to do so again; the 2012 maintenance requirement also applied to the respondent as successor in title. The Chinese Tallow was a single tree of a different species not shown to have been planted to form part of a hedge, so orders could not be made for it. T16 and T17 were planted to form a hedge on the respondent's land, were 5 metres or more in height, and severely obstructed the Issas' water view; removal was appropriate given likely structural problems. T18 appeared not to be on land...

Jurisdiction
Australia
Judgment Date
27 November 2020
Procedural Posture
Class 2 Proceedings Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Hedges and Obstruction of Views / Final Determination of Applications Heard Onsite
Outcome
Both applications granted to the extent of the orders made.
Legal Topics
['neighbouring Hedge' 'obstruction of Views' 'jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'successor in Title' 'pruning and Removal Orders']
['land and Environment' 'trees Disputes Between Neighbours'] ['neighbouring Hedge' 'obstruction of Views' 'jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'successor in Title' 'pruning and Removal Orders']

Case Brief

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Procedural Posture

Class 2 Proceedings Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 Concerning Neighbouring Hedges and Obstruction of Views / Final Determination of Applications Heard Onsite

Legal Issues

  1. 1 ['Whether the applicants made reasonable effort to reach agreement with the respondent before applying to the Court.' 'Whether the cypress hedge T1-T9 and T11-T15 met the jurisdictional requirements for orders under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 and should be maintained below 3.5 metres.' "Whether the Chinese Tallow T10 was planted so as to form part of a hedge and was within the Court's jurisdiction under Pt 2A." "Whether the Weeping Lilly Pillies T16 and T17 severely obstructed the Issas' view and should be removed." 'Whether orders could be made for T18, T19-T21 and T22.']

Ratio Decidendi

The applicants made reasonable effort to reach agreement. The cypress hedge was planted as a hedge and had severely obstructed valued water views before being pruned, and without maintenance was likely to do so again; the 2012 maintenance requirement also applied to the respondent as successor in title. The Chinese Tallow was a single tree of a different species not shown to have been planted to form part of a hedge, so orders could not be made for it. T16 and T17 were planted to form a hedge on the respondent's land, were 5 metres or more in height, and severely obstructed the Issas' water view; removal was appropriate given likely structural problems. T18 appeared not to be on land...

Court Disposition

Both applications granted to the extent of the orders made.

Orders

  • ['Proceedings 2020/84578: The application is granted, to the extent of these orders.' 'Proceedings 2020/84578: The respondent is to maintain, or engage a suitably experienced contractor to maintain, all trees in the cypress hedge along his western boundary, or in any replacement hedge along this boundary, at a...