Summers v Kumar [2019] NSWLEC 1041

Summers v Kumar [2019] NSWLEC 1041

The Court was not satisfied that roots of the respondents' cypress trees caused the applicant's driveway damage, and was not satisfied that the trees were likely to cause injury. However, the ten cypress trees formed a hedge approximately 10 metres high that severely obstructed principal views from living areas on both levels of the applicant's dwelling. After considering the matters in s 14F, the applicant's interest in removal of the view obstruction outweighed the respondents' privacy interests and other benefits of the trees. Pruning to the respondents' proposed height would do little to restore upper-level views, while pruning low enough to restore views would adversely affect the...

Jurisdiction
Australia
Judgment Date
06 February 2019
Procedural Posture
Class 2 Trees Dispute Between Neighbours Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Part 2 claims for damage, compensation and injury-based removal were rejected; Part 2A view obstruction claim succeeded and orders were made for removal of the ten cypress trees and replacement planting.
Legal Topics
['damage to Driveway by Tree Roots' 'compensation for Property Damage' 'likelihood of Injury From Trees' 'hedge Obstruction of Views' 'obstruction of Sunlight' 'tree Removal and Replacement Planting']
['environmental Law' 'land and Environment Court' 'trees Disputes Between Neighbours'] ['damage to Driveway by Tree Roots' 'compensation for Property Damage' 'likelihood of Injury From Trees' 'hedge Obstruction of Views' 'obstruction of Sunlight' 'tree Removal and Replacement Planting']

Case Brief

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Procedural Posture

Class 2 Trees Dispute Between Neighbours Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ["Whether roots from the respondents' ten cypress trees caused damage to the applicant's driveway." 'Whether the cypress trees were likely to cause injury because of alleged root damage or instability.' "Whether the cypress hedge severely obstructed views from the applicant's dwelling." "Whether the applicant's interest in removal or remediation of the view obstruction outweighed matters against interfering with the trees." 'Whether pruning would satisfactorily restore views or whether removal and replacement planting was preferable.']

Ratio Decidendi

The Court was not satisfied that roots of the respondents' cypress trees caused the applicant's driveway damage, and was not satisfied that the trees were likely to cause injury. However, the ten cypress trees formed a hedge approximately 10 metres high that severely obstructed principal views from living areas on both levels of the applicant's dwelling. After considering the matters in s 14F, the applicant's interest in removal of the view obstruction outweighed the respondents' privacy interests and other benefits of the trees. Pruning to the respondents' proposed height would do little to restore upper-level views, while pruning low enough to restore views would adversely affect the...

Court Disposition

Part 2 claims for damage, compensation and injury-based removal were rejected; Part 2A view obstruction claim succeeded and orders were made for removal of the ten cypress trees and replacement planting.

Orders

  • ['Within 30 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist with all appropriate insurances, to remove the ten cypress trees along their western boundary. The stumps are to be ground to a depth of at least 300mm.' 'The work in (1) is to be carried out in accordance...