Davidson v Bower [2024] NSWLEC 1463

Davidson v Bower [2024] NSWLEC 1463

The Leyland cypress trees were regularly and closely planted along the boundary, were a species commonly used for hedging, formed a continuous dense screen and had been pruned as a hedge, so they were planted so as to form a hedge. The applicant made reasonable efforts to reach agreement and gave the required notice. The hedge had grown to obstruct more than a moderate amount of the primary outlook from the applicant's top-floor living and dining area, including almost all of the water view, and the obstruction was severe. The applicant's interest in restoring the previously enjoyed view outweighed the identified objections because pruning to an appropriate height could restore the view...

Jurisdiction
Australia
Judgment Date
01 August 2024
Procedural Posture
Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Final Hearing
Outcome
Application granted to the extent of pruning and related access and reimbursement orders.
Legal Topics
['cypress Hedge' 'obstruction of Views' 'whether Trees Are Planted So as to Form a Hedge' 'severe View Obstruction' 'privacy' 'balancing of Interests' 'pruning Orders']
['land and Environment' 'trees Disputes Between Neighbours'] ['cypress Hedge' 'obstruction of Views' 'whether Trees Are Planted So as to Form a Hedge' 'severe View Obstruction' 'privacy' 'balancing of Interests' 'pruning Orders']

Case Brief

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Procedural Posture

Class 2 Application Under Pt 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Final Hearing

Legal Issues

  1. 1 ['Whether the Leyland cypress trees were planted so as to form a hedge for the purposes of s 14A(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether the applicant made a reasonable effort to reach agreement with the respondents and gave the required notice under s 14E(1).' "Whether the trees severely obstructed a view from the applicant's dwelling under s 14E(2)(a)(ii)." "Whether the applicant's interest in having the obstruction removed, remedied or restrained outweighed matters suggesting the undesirability of disturbing or interfering with the trees under s 14E(2)(b)." 'What pruning and access orders should be made under s 14D.']

Ratio Decidendi

The Leyland cypress trees were regularly and closely planted along the boundary, were a species commonly used for hedging, formed a continuous dense screen and had been pruned as a hedge, so they were planted so as to form a hedge. The applicant made reasonable efforts to reach agreement and gave the required notice. The hedge had grown to obstruct more than a moderate amount of the primary outlook from the applicant's top-floor living and dining area, including almost all of the water view, and the obstruction was severe. The applicant's interest in restoring the previously enjoyed view outweighed the identified objections because pruning to an appropriate height could restore the view...

Court Disposition

Application granted to the extent of pruning and related access and reimbursement orders.

Orders

  • ['The application is granted to the extent of the following orders.' "For as long as the trees remain on the respondents' property, during Spring (September-November) each year, beginning Spring 2024, the respondents are to engage at their cost a suitably qualified horticultural contractor or arborist to prune all...