Jensen v Low & Davis-Low [2018] NSWLEC 1539

Jensen v Low & Davis-Low [2018] NSWLEC 1539

The dense, continuous Leyland Cypress hedge, by reason of its height, density and central position in the applicant's outlook, operated like a solid wall and caused a severe obstruction of views from living areas of the applicant's dwelling. The jurisdictional requirements were satisfied, including reasonable efforts to reach agreement and adjoining land, and after considering the s 14F factors the applicant's interest in restoring the views outweighed the respondents' amenity, privacy, security and other objections. Orders for removal or pruning with ongoing height maintenance were therefore warranted.

Jurisdiction
Australia
Judgment Date
13 September 2018
Procedural Posture
Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning a Hedge and Loss of Views / Application Determined After Site Hearing; Orders Made
Outcome
The application was upheld.
Legal Topics
['hedge' 'loss of Views' 'severe Obstruction of Views From a Dwelling' 'pruning or Removal of Trees' 'neighbouring Land']
['land and Environment' 'trees Disputes'] ['hedge' 'loss of Views' 'severe Obstruction of Views From a Dwelling' 'pruning or Removal of Trees' 'neighbouring Land']

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Procedural Posture

Class 2 Application Under S 14 B of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning a Hedge and Loss of Views / Application Determined After Site Hearing; Orders Made

Legal Issues

  1. 1 ['Whether the 52 Leyland Cypress trees formed a hedge within s 14A of the Trees (Disputes Between Neighbours) Act 2006 (NSW).' 'Whether the trees were on adjoining land for the purposes of s 14B despite a street between the properties.' 'Whether the applicant had made a reasonable effort to reach agreement with the owners of the land on which the trees were situated.' "Whether the hedge severely obstructed views from the applicant's dwelling within s 14E(2)(a)(ii)." "Whether the applicant's interest in removal or pruning outweighed matters suggesting the undesirability of disturbing or interfering with the trees."]

Ratio Decidendi

The dense, continuous Leyland Cypress hedge, by reason of its height, density and central position in the applicant's outlook, operated like a solid wall and caused a severe obstruction of views from living areas of the applicant's dwelling. The jurisdictional requirements were satisfied, including reasonable efforts to reach agreement and adjoining land, and after considering the s 14F factors the applicant's interest in restoring the views outweighed the respondents' amenity, privacy, security and other objections. Orders for removal or pruning with ongoing height maintenance were therefore warranted.

Court Disposition

The application was upheld.

Orders

  • ['The application is upheld.' 'Within 90 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 (tradesperson) arborist or horticulturist with all appropriate insurances to remove the 52 Leyland Cypress trees along the southern and western boundaries adjacent to the road.' 'OR...