McCrossin v Carter [2023] NSWLEC 1500

McCrossin v Carter [2023] NSWLEC 1500

The Bamboo and Magnolia trees formed a hedge to which Pt 2A applied. Although, after pruning before the hearing, the hedge was not the primary cause of sunlight obstruction, the Court adopted Steber and found that before the recent pruning the hedge had severely obstructed the only otherwise available sunlight around midday and that, given the species' growth and the history of the dispute, severe obstruction was likely to recur. The s 14E(2)(a) jurisdictional threshold was therefore met. Balancing the applicant's sunlight access against the respondents' privacy, amenity and tree-health interests justified a compromise of annual pruning and removal of the lattice, but not pruning the...

Jurisdiction
Australia
Judgment Date
05 September 2023
Procedural Posture
Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing; Final Orders
Outcome
Application allowed in part; orders made for removal of lattice and annual pruning of the Bamboo and Magnolia hedge and part of the respondents' north side hedge.
Legal Topics
['high Hedges' 'severe Obstruction of Sunlight to Windows' 'pruning Orders' 'privacy and Amenity' 'removal of Lattice Above Boundary Fence']
['land and Environment' 'trees Disputes Between Neighbours'] ['high Hedges' 'severe Obstruction of Sunlight to Windows' 'pruning Orders' 'privacy and Amenity' 'removal of Lattice Above Boundary Fence']

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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 After Onsite Hearing; Final Orders

Legal Issues

  1. 1 ['Whether the Bamboo and Magnolia trees formed a hedge to which Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether the hedge severely obstructed sunlight to windows of the applicant's dwelling within s 14E(2)(a), including where pruning occurred before the hearing." "Whether the applicant's interest in remedying the obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the trees." 'What orders should be made concerning pruning of the hedge and removal of lattice above the common boundary fence.']

Ratio Decidendi

The Bamboo and Magnolia trees formed a hedge to which Pt 2A applied. Although, after pruning before the hearing, the hedge was not the primary cause of sunlight obstruction, the Court adopted Steber and found that before the recent pruning the hedge had severely obstructed the only otherwise available sunlight around midday and that, given the species' growth and the history of the dispute, severe obstruction was likely to recur. The s 14E(2)(a) jurisdictional threshold was therefore met. Balancing the applicant's sunlight access against the respondents' privacy, amenity and tree-health interests justified a compromise of annual pruning and removal of the lattice, but not pruning the...

Court Disposition

Application allowed in part; orders made for removal of lattice and annual pruning of the Bamboo and Magnolia hedge and part of the respondents' north side hedge.

Orders

  • ['Within 45 days of the date of these orders, the respondents, at their expense, shall remove all timber lattice and lattice frames from the top of the timber common boundary fence and not replace it with any structure that may obstruct sunlight.' "During April of 2024, and during April of each subsequent year, the...