Hauser v Vila [2021] NSWLEC 1546

Hauser v Vila [2021] NSWLEC 1546

The jurisdictional requirements under s 14E of the Trees (Disputes Between Neighbours) Act 2006 were met because trees T1–T3 and T4–T7 were conifers planted as hedges, exceeded the statutory height threshold, and severely obstructed sunlight to windows of the applicant's dwelling, and the applicant had tried to reach agreement. The proposed pruning of T1–T3 was not appropriate because the species did not respond well to pruning, the trees would become unattractive, would provide little benefit to the respondent, and would negatively affect streetscape and public amenity; removal of T1–T3 was preferable. Pruning T4–T7 to 5.5 metres was appropriate because those trees were in the...

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Class 2 Application Under S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Sunlight by Neighbouring Hedges / Principal Judgment Following Hearing; Proposed Consent Orders Considered and Final Orders Made
Outcome
Orders made requiring the applicant to pay for removal of trees T1–T3 and pruning of trees T4–T7, with access to be allowed by the respondent.
Legal Topics
['neighbouring Hedges' 'conifer Trees' 'obstruction of Sunlight' 'jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'pruning and Removal Orders' 'consent Orders']
['trees Disputes Between Neighbours' 'land and Environment'] ['neighbouring Hedges' 'conifer Trees' 'obstruction of Sunlight' 'jurisdiction Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006' 'pruning and Removal Orders' 'consent Orders']

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Procedural Posture

Class 2 Application Under S 14 B (pt 2 A) of the Trees (disputes Between Neighbours) Act 2006 Concerning Obstruction of Sunlight by Neighbouring Hedges / Principal Judgment Following Hearing; Proposed Consent Orders Considered and Final Orders Made

Legal Issues

  1. 1 ['Whether the trees formed hedges rising to a height of at least 2.5 metres for the purposes of s 14A(1) of the Trees (Disputes Between Neighbours) Act 2006' 'Whether the applicant made reasonable effort to reach agreement with the tree owner under s 14E(1) of the Trees (Disputes Between Neighbours) Act 2006' "Whether the trees severely obstructed sunlight to windows of the applicant's dwelling under s 14E(2)(a) of the Trees (Disputes Between Neighbours) Act 2006" "Whether the applicant's interest in mitigating the obstruction outweighed reasons to avoid interfering with the trees under s 14E(2)(b) of the Trees (Disputes Between Neighbours) Act 2006" 'Whether the proposed consent orders should be made or different orders were appropriate']

Ratio Decidendi

The jurisdictional requirements under s 14E of the Trees (Disputes Between Neighbours) Act 2006 were met because trees T1–T3 and T4–T7 were conifers planted as hedges, exceeded the statutory height threshold, and severely obstructed sunlight to windows of the applicant's dwelling, and the applicant had tried to reach agreement. The proposed pruning of T1–T3 was not appropriate because the species did not respond well to pruning, the trees would become unattractive, would provide little benefit to the respondent, and would negatively affect streetscape and public amenity; removal of T1–T3 was preferable. Pruning T4–T7 to 5.5 metres was appropriate because those trees were in the...

Court Disposition

Orders made requiring the applicant to pay for removal of trees T1–T3 and pruning of trees T4–T7, with access to be allowed by the respondent.

Orders

  • ['Within 90 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) with all appropriate insurances to remove the conifer trees T1–T3 (see attached "Diagram A") to ground level and to prune conifer trees T4 to T7 (see attached "Diagram A") to a...