Donkersley v Antolovich [2019] NSWLEC 1445

Donkersley v Antolovich [2019] NSWLEC 1445

The lilli pillies, but not the cypress trees, severely obstructed the applicant's valuable northeast view from the ground floor living areas, including marina views. Considering the totality of the view, the contribution of that part of the view to the applicant's amenity, the respondents' privacy interests, the absence of any development consent condition requiring the lilli pillies to remain at their current height, and the maintenance burden caused by overhanging hedge branches, the applicant's reasons for pruning outweighed the respondents' reasons for maintaining the lilli pillies at their current heights. Orders were therefore warranted requiring annual pruning of the lilli pilli...

Jurisdiction
Australia
Judgment Date
12 September 2019
Procedural Posture
Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Hedges Obstructing Views / Principal Judgment After Hearing; Final Orders Made
Outcome
Application granted with pruning orders for the lilli pillies; the element seeking orders for the cypress trees was dismissed and the Part 2 damage or injury element concerning the Angophora was not pressed.
Legal Topics
['hedge Obstruction of View' 'severe Obstruction of a View' 'balancing Views and Privacy' 'pruning Orders' 'development Consent Conditions']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings' 'property and Neighbourhood Disputes'] ['hedge Obstruction of View' 'severe Obstruction of a View' 'balancing Views and Privacy' 'pruning Orders' 'development Consent Conditions']

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Procedural Posture

Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Hedges Obstructing Views / Principal Judgment After Hearing; Final Orders Made

Legal Issues

  1. 1 ["Whether the trees planted to form hedges more than 2.5 metres tall caused a severe obstruction of a view from the applicant's dwelling under s 14E(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." "Whether, if a severe obstruction was found, the applicant's reasons for pruning the trees outweighed the respondents' reasons for maintaining them at their current heights, having regard to matters in s 14F of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." 'Whether the height of the lilli pillies was required by a development consent condition.' 'Whether orders should be made for the cypress hedge, the lilli pilli hedge, or both.']

Ratio Decidendi

The lilli pillies, but not the cypress trees, severely obstructed the applicant's valuable northeast view from the ground floor living areas, including marina views. Considering the totality of the view, the contribution of that part of the view to the applicant's amenity, the respondents' privacy interests, the absence of any development consent condition requiring the lilli pillies to remain at their current height, and the maintenance burden caused by overhanging hedge branches, the applicant's reasons for pruning outweighed the respondents' reasons for maintaining the lilli pillies at their current heights. Orders were therefore warranted requiring annual pruning of the lilli pilli...

Court Disposition

Application granted with pruning orders for the lilli pillies; the element seeking orders for the cypress trees was dismissed and the Part 2 damage or injury element concerning the Angophora was not pressed.

Orders

  • ['The application is granted.' 'During October each year, beginning October 2019, the respondents are to engage a suitably experienced and insured contractor to prune the lilli pillies in the hedge along their western boundary so that Trees T2–T12 (trees north of the banksia T13) are no taller than 2.5 metres in...