Fussell v Forte [2022] NSWLEC 1742

Fussell v Forte [2022] NSWLEC 1742

The Tiger Grass row was a hedge within s 14A(1), the applicants had satisfied the notice and reasonable-effort requirements, and the hedge severely obstructed the applicants' valuable water and land-water interface views from their dwelling. After considering the discretionary factors in s 14F, the severity and nature of the obstruction outweighed the respondent's privacy and amenity interests, so pruning and maintenance orders were warranted rather than removal.

Jurisdiction
Australia
Judgment Date
10 October 2022
Procedural Posture
Class 2 Application Under S 14 B of Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Orders After Hearing
Outcome
Orders made requiring the respondent, at her expense, to prune and maintain the specified section of the hedge; removal of the hedge was not ordered.
Legal Topics
['high Hedges' 'view Obstruction' 'privacy Considerations' 'jurisdictional Requirements Under Pt 2 A' 'pruning and Maintenance Orders']
['trees Disputes Between Neighbours' 'land and Environment Court Proceedings'] ['high Hedges' 'view Obstruction' 'privacy Considerations' 'jurisdictional Requirements Under Pt 2 A' 'pruning and Maintenance Orders']

Case Brief

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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; Final Orders After Hearing

Legal Issues

  1. 1 ['Whether the Tiger Grass constituted a hedge for the purpose of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicants gave the required notice under s 14C of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicants made a reasonable attempt to reach agreement with the respondent under s 14E(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the hedge severely obstructed a view from the applicants' dwelling within s 14E(2)(a)(ii) of the Trees (Disputes Between Neighbours) Act 2006." "Whether the applicants' interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the hedge under s 14E(2)(b) and s 14F of the Trees (Disputes Between Neighbours) Act 2006."]

Ratio Decidendi

The Tiger Grass row was a hedge within s 14A(1), the applicants had satisfied the notice and reasonable-effort requirements, and the hedge severely obstructed the applicants' valuable water and land-water interface views from their dwelling. After considering the discretionary factors in s 14F, the severity and nature of the obstruction outweighed the respondent's privacy and amenity interests, so pruning and maintenance orders were warranted rather than removal.

Court Disposition

Orders made requiring the respondent, at her expense, to prune and maintain the specified section of the hedge; removal of the hedge was not ordered.

Orders

  • ["Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent's dwelling side wall which faces the applicants' property, and the termination of the hedge near the...