Sinclair v Savdie [2022] NSWLEC 1040

Sinclair v Savdie [2022] NSWLEC 1040

The hedge as maintained at up to 8 metres was a severe obstruction to the applicants' views under s 14E(2)(a)(ii) of the Trees Act; however, the applicants are not entitled to views they did not have upon taking occupation. The appropriate remedy is to maintain the hedge at a height less than 6.25 metres (the height when applicants moved in), thus reducing obstruction below severe, balancing both parties’ interests.

Jurisdiction
Australia
Judgment Date
02 February 2022
Procedural Posture
Application for Orders Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
Application granted in part; orders made for pruning and maintenance of hedge to below 6.25 metres at respondent's expense, with professional involvement.
Legal Topics
['trees (disputes Between Neighbours)' 'view Obstruction' 'balancing of Interests (views Vs Privacy)' 'pruning Orders']
['environmental Law' 'property Law'] ['trees (disputes Between Neighbours)' 'view Obstruction' 'balancing of Interests (views Vs Privacy)' 'pruning Orders']

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Procedural Posture

Application for Orders Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the hedge comprised of eight Lilly Pilly trees constitutes a severe obstruction of views from the applicants’ dwelling under s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)' 'Whether jurisdictional requirements of the Act are satisfied, including reasonable efforts to reach agreement before application' 'Whether the applicants are entitled to views that were not available upon their occupation of the property' 'Appropriate balance between the applicants’ interest in restoring views and the respondent’s privacy']

Ratio Decidendi

The hedge as maintained at up to 8 metres was a severe obstruction to the applicants' views under s 14E(2)(a)(ii) of the Trees Act; however, the applicants are not entitled to views they did not have upon taking occupation. The appropriate remedy is to maintain the hedge at a height less than 6.25 metres (the height when applicants moved in), thus reducing obstruction below severe, balancing both parties’ interests.

Court Disposition

Application granted in part; orders made for pruning and maintenance of hedge to below 6.25 metres at respondent's expense, with professional involvement.

Orders

  • ['The application is granted in part.' "The Respondent shall prune the hedge, such that at all times in the future, the hedge is maintained at a height less than 6.25 metres above the natural ground level of the respondent's courtyard (i.e. below RL 51.12)." "The work required under Order 2 shall be carried out: (a)...