Baker v Choi [2022] NSWLEC 1161

Baker v Choi [2022] NSWLEC 1161

The eight Leyland cypress trees formed a hedge close to the applicants' dwelling and severely obstructed all morning sunlight to the applicants' east-facing windows. Although pruning could provide clearance from the gutters and one tree was displacing the boundary fence, reducing the trees enough to restore sunlight would severely affect their amenity and life expectancy and would not preserve the benefits sought by the respondent. Removal of the trees and a height limit on any replacement hedge planting were therefore warranted.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Orders Made on 24 March 2022
Outcome
Application granted to the extent of the orders.
Legal Topics
['damage to Property From Trees' 'obstruction of Sunlight by Hedge' 'boundary Fence Displacement' 'tree Removal' 'height Restriction for Future Hedge Planting']
['trees Disputes Between Neighbours' 'property Law'] ['damage to Property From Trees' 'obstruction of Sunlight by Hedge' 'boundary Fence Displacement' 'tree Removal' 'height Restriction for Future Hedge Planting']

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Procedural Posture

Class 2 Application Under Pt 2 and Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Orders Made on 24 March 2022

Legal Issues

  1. 1 ["Whether the trees have caused, are causing, or are likely in the near future to cause damage to the applicants' property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the trees are severely obstructing sunlight to the applicants' windows under s 14E(2)(a)(i) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether pruning, removal, or future height restrictions should be ordered after considering the matters in s 14F of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The eight Leyland cypress trees formed a hedge close to the applicants' dwelling and severely obstructed all morning sunlight to the applicants' east-facing windows. Although pruning could provide clearance from the gutters and one tree was displacing the boundary fence, reducing the trees enough to restore sunlight would severely affect their amenity and life expectancy and would not preserve the benefits sought by the respondent. Removal of the trees and a height limit on any replacement hedge planting were therefore warranted.

Court Disposition

Application granted to the extent of the orders.

Orders

  • ['The application is granted to the extent of the following orders.' "The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the trees to no more than 300 mm above ground level within 30 days of the date of these orders. Tree removal work...