Hennessy v Unsworth

Land and Environment Court (NSW)|2023-07-20

Background

COMMISSIONER: For many years, a hedge on Amanda and Tim Unsworth's Mosman property was maintained at the same height as the fence on their eastern boundary. When the hedge was allowed to grow taller in 2022, Lucy and John Hennessy, who live upslope from the Unsworths, found their access to sunlight and views was obstructed.
Lucy Hennessy (the applicant) has applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for a hedge of lilly pillies (the trees) to be pruned and maintained to restore a view, and access to sunlight, that she previously enjoyed. The trees are on the adjoining property belonging to Amanda Unsworth (the respondent).

Framework for this decision

A row of numerous lilly pillies (Syzygium smithii) grows on the respondent's property along her eastern boundary. It is not disputed that the trees are planted so as to form a hedge reaching more than 2.5 metres in height (s 14A of the Trees Act). Therefore, Pt 2A of the Trees Act applies to the trees.
The key jurisdictional tests in these proceedings are found at s 14E of the Trees Act: 14E Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C. (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
The matters above are jurisdictional hurdles that must be crossed before the Court can make orders. Therefore, the following questions must be answered in the affirmative if the Court is to make any orders:

Did the applicant make a reasonable effort to reach agreement with the respondent?
Are the trees severely obstructing a view from the applicant's dwelling, or sunlight to a window of the applicant's dwelling?
Do the applicant's interests in restoring access to sunlight or views outweigh reasons to avoid interfering with the hedge?

While the applicant says that the Court can be satisfied that the above tests are met, the respondent disputes this, arguing that each of the three questions above are answered in the negative.
Section 14F of the Trees Act then provides an extensive list of matters that the Court must consider. 14F Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application, (b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to), (c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land, (d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (e) any other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated, (f) whether the trees have any historical, cultural, social or scientific value, (g) any contribution of the trees to the local ecosystem and biodiversity, (h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned, (i) the intrinsic value of the trees to public amenity, (j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned, (k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees, (l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated, (m) anything, other than the trees, that has contributed, or is contributing, to the obstruction, (n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction, (o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost, (p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves, (q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view, (r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed, (s) such other matters as the Court considers relevant in the circumstances of the case.
The matters at s 14F provide a useful guide to the Court when answering the question raised by s 14E(2)(b). The main areas of contention between the parties are:

The trees' contribution to the respondent's privacy, and what constitutes a reasonable expectation regarding privacy.
Whether the applicant's dwelling is compliant, and if not, whether that justifies the height of the hedge.

Reasonable effort to reach agreement

In considering the applicant's effort to reach agreement, I note that both the applicant and the respondent live with their respective spouses. Evidence provided to the Court includes emails between Mr Hennessy and Mr Unsworth. I assume that these communications represent the views and intent of each couple, so that Mr Hennessy's emails can be taken to represent Mrs Hennessy's approach to the issue, and likewise, Mr Unsworth's emails represent Mrs Unsworth's response. Mrs Unsworth clearly expressed this intention in her statement of 10 July 2023; Mrs Hennessy had asked her husband to represent her. Mr Hennessy's emails identified the issue of the hedge's obstruction of the Hennessys' sunlight and views, and asked the Unsworths to prune the hedge. Mr Unsworth invited Mr Hennessy to meet and discuss the issue, suggesting that Mr Hennessy would be assisted by seeing the situation from the Unsworths' property. Mr Hennessy declined to meet, referring to the nature of Mr Unsworth's conduct during previous meetings, thereby making it clear that he would only negotiate via email. Mr Hennessy wrote that the Hennessys would begin court proceedings, as no agreement seemed likely. The respondent submitted to the Court that Mr Hennessy's refusal of Mr Unsworth's offer to meet represents a lack of reasonable effort to reach agreement on behalf of the applicant.
During the hearing, Mr Hennessy offered to provide further emails that might explain his reluctance to meet in-person with Mr Unsworth. On the evidence before me at the hearing, I made a finding that the applicant had made a reasonable effort to reach agreement, and so no further evidence would be required. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ discussed, at [191]-[196], the Trees Act's requirement for the applicant to make a reasonable effort to reach agreement. His Honour noted that "a reasonable effort" is less demanding than language such as "all reasonable attempts" used in some other statutory enactments. Even when determining if the more demanding test was satisfied, Lloyd J noted in Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42 at [14] that the "…requirement is satisfied when objectively it is extremely unlikely that further negotiations will produce a consensus within the reasonably foreseeable future." It seems apparent now, and Mr Hennessy submitted that it was clear to him at the time, that the Hennessys were unlikely to reach agreement with the Unsworths on their desired outcome. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondent.

The trees do not severely obstruct sunlight to the applicant's windows

The applicant's property is to the east of, and upslope from, the respondent's property. The hedge is on the respondent's property along her eastern boundary, being the common boundary shared with the applicant. Until 2022, the hedge was at or below the sill height of relevant windows in the applicant's western wall. Since 2022, the hedge has been allowed to grow taller, so it is now above sill height. The respondent pruned the hedge not long before the hearing, but submitted that it is her intention to have it taller than its height at the time of the hearing, so that it might reach halfway up the height of these windows. Mr Grace argued that the applicant has provided no evidence, such as shadow diagrams or photographs, demonstrating a severe sunlight obstruction. The respondent provided photographs (photos 14 and 15 in Exhibit 2) showing the applicant's windows in full sun during late afternoon, with the shadow of the respondent's dwelling about to move on to the applicant's windows. Although the hedge is less than 2 metres from the applicant's dwelling, relying on my own observations and experience, I find that that the hedge would only obstruct sunlight to these windows in the very late afternoon, when the sun is close to the horizon, even with the trees at the respondent's preferred height, and then only briefly until the respondent's dwelling's shadow falls across the windows. This level of sunlight obstruction I consider as minor, not severe. Mr Hennessy submitted that the hedge obstructs their view of the sunset. While I might consider this when assessing the view obstruction, I do not think it contributes to the assessment of sunlight obstruction, which is ordinarily based on the number of hours during the day that sunlight would otherwise be available.
The matters at s 14F of the Trees Act, to be considered by the Court before determining an application, have varied utility. Some are of a general nature. Many assist the Court in determining the test at s 14E(2)(b), where the trees' benefits must be weighed against their negative impacts to the applicant. Others apply directly to determining the severity of the view or sunlight obstruction at s 14E(2). For instance, at s 14F the Court must consider inter alia: (o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost…
I find that the hedge does not significantly reduce the number of hours that sunlight is available to the applicant's windows, and therefore it does not severely obstruct sunlight to those windows.

The trees severely obstruct the applicant's view

The trees in the hedge were planted in 2021, replacing a similar hedge that the respondent removed in 2020 due to the earlier trees' poor health. Photographs provided by the applicant show the extent of the trees' view obstruction at the time she prepared her evidence for these proceedings. The trees were pruned two days before the hearing. I observed the extent of the view obstruction at the time of the hearing. The respondent stated that it is her intention to maintain the trees at a height 200 mm above the trees' height observed at the hearing. Based on this, rather than limit my assessment of the view obstruction to the day of the hearing, I consider what is most likely the ongoing state of affairs here: a hedge that is approximately 200 mm taller than the trees' height on the day of the hearing. This is consistent with the approach set out in Steber v Job [2019] NSWLEC 1308 (Steber). Here, as in Steber, the Court has photographs of the trees at a greater height before the hearing, and knowledge of the likely ongoing situation if the Court does not order any interference. I rely here on the applicant's photographs, Ms Sneyd's report, submissions from Mr Hennessy and Mr Grace, along with my own observations made onsite.
The applicant's photographs show that the hedge reduced the view from the applicant's relevant west-facing windows so that only the sky remained visible above the trees. Other photographs, and observations made onsite, demonstrated the view that was available earlier when the hedge (both the existing hedge and the one it replaced) was at the height of the fence. From the applicant's living room, the view, absent of the hedge's obstruction, is across Mosman, Cremorne and Neutral Bay to the North Sydney skyline. That view is partly limited by roofs of the two dwellings closest to the applicant, one of those being the respondent's dwelling.
Mr Hennessy submitted that the view was much enjoyed by the applicant and her family and visitors prior to the trees' additional growth since 2022.
Ms Sneyd thought the view obstruction was not severe. She noted that the view was only available from a standing position; that it was of a distant outlook of dwellings below the ridgeline, without remarkable or iconic features; that it was partly obscured by other features including a palm tree's stem, a chimney, and other more-distant trees; and that it is a view across the applicant's side boundary. She described the view below the ridgeline as 'low value'. Having compared the view obstruction caused by the hedge, with the very minor obstruction of the more-distant features such as the palm tree's stem and the chimney, I find some of Ms Sneyd's observations regarding those landscape elements to be somewhat exaggerated.
Ms Sneyd referred to Commissioner Fakes' use, in Rees v Chen [2017] NSWLEC 1502 (Rees), of the view-sharing principle set out by Roseth SC at [23]-[29] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and particularly its first three steps. The Tenacity principle's first step considers the value of the view, with iconic features (for instance the Opera House) and water views being recognised as more valuable than district views. The second step considers from where the views are seen: from sitting or standing positions, or across side boundaries versus front or rear boundaries. The third step considers the overall qualitative impact on the whole property, and the use of the rooms from where the view is seen. The Tenacity principle has been considered in many Pt 2A tree disputes.
Ms Sneyd concluded that the view obstruction could not be considered severe, as it is a district view only, and is seen from a standing position across a side boundary. She thought this was similar to the situation in Rees, where the view obstruction was not considered to be severe and the application was refused.
In my experience, each situation that comes before the Court is unique. While certain aspects described by Ms Sneyd above were also described in Rees, Fakes C wrote in Rees at [33]: "I accept that the view in contention is a valued view of water and the land water interface, however it is across a side boundary and it is one relatively small portion of the overall view available from both sitting and standing positions in the master bedroom and from many positions in the open plan living room. The applicants also have a large deck adjoining both of these rooms; the decks project further forward and would be unconstrained by the bamboo."
The obstructed view in Rees was only a small part of the overall view, much of which remained available. The Hennessys' view from their living room, on the other hand, is entirely obstructed by the hedge, other than the section of sky remaining above.
The nature and extent of the applicant's view has been described above. Not everyone gets an iconic view, nor a view with iconic features, nor even a water view. The applicant's view is a pleasant outlook. The west-facing windows have been designed to maximise this view. Two other dwellings obscure part of the district view, but the overall view remains expansive. Other, more distant and relatively minor features in the landscape, such as the palm stem and chimney noted earlier, might be considered part of the outlook here, rather than an obstruction. The view has mostly been lost since the hedge was allowed to grow taller. In the circumstances, it seems reasonable to maintain a view across the applicant's side boundary - it is the direction of the principal view from their property; and, while it might be the applicant's side boundary, it is the respondent's rear boundary. The windows are in the room where people are most likely to gather and spend time. Windows W1 and W2 are smaller windows with deep sills - the view is less accessible here than elsewhere. On the other hand, windows W3 and W4 are tall double windows that maximise the potential to enjoy the western view from the living room.
Considering these elements of the situation together, and using the language of Tenacity, I find the impact of the hedge on the applicant's view is more than moderate, but less than devastating: it is severe.
In balancing the applicant's interests against reasons to avoid interfering with the trees (s 14E(2)(b) of the Trees Act), the Court considers the matters set out at s 14F.

The location of the trees

The trees are located on the respondent's land, along the common boundary. The section of the hedge that obstructs view is less than 2 metres from the applicant's family room windows.

The history of the hedge and the applicant's dwelling

When the Hennessys purchased their property, the area that is now their family room was a deck, which had been enclosed with aluminium louvres by the previous owners. The deck was alongside a living room and was beneath the main roof of the dwelling. Along the common boundary, the respondent had a lilly pilly hedge, which was maintained at the height of the fence that is on, or close to, the common boundary. As the hedge is planted downslope of the fence, the hedge was more than 2.5 metres tall. The hedge was replaced in 2021. The new hedge grew to fence height.
In 2022, the Hennessys modified their dwelling, so that the enclosed deck became their living room, its west-facing windows replacing the floor-to-ceiling aluminium louvres. The hedge, which at fence height had been at or just below the sills of the new windows W3 and W4, was allowed to grow taller, obstructing the view that, at first, was available from the applicant's new windows.
The Unsworths objected to the Hennessys' 2022 development application for their renovation, citing its impacts on their privacy.
The Court must consider, at s 14F(b): whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to).
The Trees Act provides a means to remedy, restrain or prevent a view obstruction that the applicant themselves has lost: see Koundouris v Kresner [2022] NSWLEC 1168 at [47]-[52]. The applicant claims, correctly, that her view was unobstructed by the hedge immediately after her recent renovation. However, the history described above demonstrates that the relevant circumstances here have often been in flux, so that a picture taken at one instant does not necessarily represent, over time, the nature of the landscape nor the parties' intentions.
The respondent described her enjoyment of her garden. Over many years, she and her husband have spent considerable time and effort developing their garden. The lilly pilly hedge they grew along their rear boundary has provided amenity and privacy over an extensive period. Photographs attached to the respondent's statement (Exhibit 2) show her garden and the hedge at various stages. Photo 003, taken from her garden near the rear wall of her dwelling, shows the original hedge in 2018 screening most of the western wall of the applicant's dwelling, including the aluminium windows. Mrs Unsworth described that the hedge, then at fence height, provided them with sufficient privacy - she had no need for a taller hedge at that time. Photo 005, in January 2021, shows the replacement hedge below fence height, with the open aluminium louvres above, while photo 007 (August 2021) shows the tops of the lilly pillies reaching fence height, with the aluminium louvres still visible above. The trees had not yet fully developed. By January 2022 (photo 011), the applicant's new windows were in place along what had become their living room, rather than a deck; the lilly pillies were at fence height. Photo 011, taken from near the respondent's dwelling's rear wall, albeit from a more southerly location than photo 003, shows the contrast between the potential overlooking from the earlier deck, through aluminium louvres, and that through the windows of the new living room.
Considering the changes to the applicant's dwelling, it seems reasonable that the respondent might want to grow the hedge taller to increase privacy and screening. That is, I find that there was no static arrangement of dwellings and landscape that suddenly changed when the hedge grew taller, resulting in some view obstruction. The respondent's landscape has been changing over time in response to changes in the surrounding environment, including significant alterations to the applicant's dwelling. It would be unreasonable for the applicant to expect elements of surrounding properties to remain unchanged, for their own benefit, while improving their own property. Despite the applicant's view being unobstructed by the hedge in early 2022, I do not consider that, of itself, a reason to make orders for restoring the hedge to its earlier height. Of course, such orders could be made for other reasons, or orders for pruning to some other height could be made.

When the trees grew to be taller than 2.5 metres

The respondent planted the trees early 2021 to replace trees that were in decline. In my mind, the hedge has been a consistent landscape element and has therefore been greater than 2.5 metres for many years.

Whether interference with the trees would require any consent

The State Environmental Planning Policy (Biodiversity and Conservation) 2021 (the SEPP) establishes the rules for vegetation clearing in NSW, managed by permit requirements at the local government level. The definition for 'clearing' in the SEPP includes: "to cut down or destroy vegetation, or to lop or otherwise remove a substantial part of the vegetation". Trimming the top of the respondent's hedge would probably not amount to the removal of a substantial part of the vegetation. Were council consent required, however, I see no reason why Mosman Council (Council) would refuse an application to prune this hedge. The evidence before the Court does not include any recent application for Council consent to prune the hedge.

Relevant development consent requirements or conditions

The respondent filed evidence demonstrating the applicant's apparent failure to comply with all conditions of their development consent, resulting in impacts to the respondent's amenity and privacy, in turn requiring the respondent to increase the height of her boundary hedge. Mr Grace made extensive submissions on this issue, as did Mr Hennessy. In summary:

A 2004 development consent for the applicant's property required a screening hedge along their boundary at a specified height. The respondent submitted that the hedge is not complete (unapproved stairs required a break in the hedge), nor is it the correct height.
The applicant gained development consent for their 2022 alterations.
The applicant then gained a modified development consent to alter some elements of their original consent, including a modification to the roof. The applicant had also reduced the size of two of the living room windows, although this apparently did not require a modified development consent. The approved modification plans included a mistake, so that an elevation drawing did not match the corresponding plan. The elevation drawing showed the proposed windows incorrectly. Nevertheless, the applicant's alterations were completed.
The respondent complained to Council that the windows as constructed did not match the elevation drawing.
The applicant's subsequent modification application, attempting to remedy the works that did not match the development consent, was refused on the grounds that, in accordance with the decision in Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177, the application could not be determined retrospectively.
Despite the preceding point, Council conducted a merits-based assessment of the application that found the windows were unlikely to cause overlooking opportunities to the respondent's property. Council relied on this merits-based assessment to later issue a building certificate for the works.

Mr Grace opined that we cannot know what Council considered when making its assessment. The respondent's expert, Ms Sneyd, has assessed the current situation and found that overlooking to the respondent's property is an issue.
To my mind, the history of development consents and modifications has limited relevance. If overlooking is an issue, landscaping might be used to minimise the impact, whether or not overlooking arises from non-compliance with a consent condition. I note here that the height of the lilly pilly hedge is not a condition of any consent. For completeness, I also note that in these proceedings the respondent has not identified a sightline from the applicant's property to the respondent's first-floor window an issue.

The trees' contribution beyond the respondent's amenity and privacy

The trees provide some limited ecosystem services such as cooling, filtering pollutants, reducing run-off of rainfall and so on. Beyond that, they make no significant historical, cultural, social, scientific or environmental contribution. They contribute little to public amenity.

The respondent's landscape

Mrs Unsworth stated, and I accept, that the trees form an integral part of her landscaped garden. The Unsworths value their garden, both spending time in it and observing it from within their dwelling. As with other elements of the garden, they put notable effort into planning and planting the hedge.

Privacy and amenity

I have described the hedge's contribution to privacy above - how it gave the Unsworths some screening from the earlier aluminium louvres when at fence height, and why they want it taller to provide a similar level of screening from the newer windows. In the balancing of interests at s 14F of the Trees Act, it is this issue of privacy that is the respondent's principal reason for wanting the Court to refuse the applicant's proposed orders. The respondent submitted that she wants to remedy the sense that the Hennessys are overlooking her property, even if they are not at the window looking down. She explained that the applicant's tall windows give the sense that someone could be looking. Mr Grace argued that privacy, as a consideration at s 14F(l) of the Trees Act, includes the sense of privacy.
I accept that the respondent might have a perception of being seen from the applicant's property, given the height of the applicant's windows, even though the tops of those windows are well above head height. But in balancing the interests of each party, I find the applicant's desire for the view and the respondent's desire to prevent actual overlooking are the primary matters to consider. The respondent's perception of privacy, beyond actual overlooking, is of lesser importance.
During the onsite view, I stood at the relevant windows to observe the potential for overlooking from the applicant's living room to the respondent's property. I also observed the potential for overlooking from the applicant's outdoor area. I am taller than most people, with a greater opportunity to see over the hedge than those who reside in the applicant's dwelling. In the conclusions of her report, Ms Sneyd wrote (at par 12.2): "The hedge as existing provides an effective landscape screen to both properties that would otherwise suffer a reduction in privacy if the hedge was to be reduced in height as sought. If the hedge was to be reduced to the extent sought by the Applicants there would be a considerable reduction in the visual privacy enjoyed by the residents of both properties."
Ms Sneyd's conclusions begin on page 19 of her report. In the preceding 18 pages Ms Sneyd discusses the view, the applicant's dwelling and the applicant's development consents, but I could find no analysis or discussion of the potential impact on the respondent's privacy of pruning the applicant's hedge. That is, the conclusion seemed unsubstantiated and unexplained. When I asked what led her to this conclusion, Ms Sneyd asserted that it was based on her observations from the kitchen window and from poking her head through the hedge from above the fence. My own observations during the onsite view were from the subject windows, where it seemed that, were the hedge pruned at fence height, there would very limited potential for overlooking into the respondent's dwelling, even for someone of my height. Were the hedge 100-200 mm above fence height, the potential for overlooking would likely vanish. That height, shown in the applicant's photo in Exhibit E by tape on the window, was suggested to the respondent by the applicant the day before the hearing. The applicant's proposal seems reasonable: the photograph supports my observations that such a height for the hedge would maintain privacy for the respondent while restoring the view for the applicant.
The respondent also submitted that she wishes to screen the applicant's built form generally, but in particular the applicant's ceiling lights. Photo 013 (Exhibit 2) shows the applicant's lighting, both internal and external, from the rear of the respondent's dwelling. The lights are bright and, in the photo at least, appear intrusive. I accept the respondent's amenity at night-time is impacted. Photo 013 was taken in June 2022, only three months after photo 012, a daylight photo which shows the lilly pillies tips were around fence height, but the bulk of their foliage was lower - the replacement trees had not yet grown to form a dense screen with a level top. It seems likely that a hedge maintained a little above fence height, once fully developed, would screen most of the applicant's lights, especially if the foliage is allowed to extend further westward, away from the boundary, thereby creating a broader hedge.

Other obstructions to the view

Other landscape elements that obstruct the view are discussed above. Their contribution to any obstruction of a view is minor when compared with the hedge.

Any steps to rectify the obstruction

Mr Hennessy asked Mr Unsworth to prune the hedge. The Unsworths undertook minor pruning prior to the hearing, but Mrs Unsworth stated her clear intention is to have the hedge halfway between the sills and the tops of the applicant's windows.

The trees are evergreen

As lilly pillies are evergreen, the hedge's obstruction of the view would not abate during winter.

Other matters

The nature of the view has been discussed earlier. All landscape elements are obscured by the hedge. The affected windows are to a living room that is used frequently by the applicant and her family and guests.
Not all trees in the hedge affect the applicant equally. However, the hedge has, in the past, been maintained at a uniform height along its length, and for aesthetic reasons it seems appropriate to continue to do so. Mr Grace submitted that the Court cannot order pruning below the height that would reasonably restore a view, nor could it make orders for trees beyond those affecting views from windows. On the contrary, the Court considers various factors when making orders, including the ability of the applicant to prune the hedge at a certain height and the ease of access for pruning. The Court can make orders to prune all trees in a hedge, even if not all obstruct the view: see Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215.
Orders will be made to prune the trees twice each year at a height of 150 mm above the top of the existing fence. This should restore the view and provide sufficient privacy for the respondent while allowing for some regrowth between pruning events. Carrying out these orders should be no more onerous than the pruning that the respondent has done in the past proposes to continue. The applicant is to allow any access required for the works.

Conclusion

The respondent's lilly pilly hedge severely obstructs a view from the applicant's dwelling. Having balanced the interests of each party, I find that the hedge can be maintained at a height that will remove most of its obstruction of the view without adversely impacting the respondent's privacy.

Orders

The Court orders: 1. The application is granted to the extent of the following orders. 2. Twice each year in April and October, beginning April 2024, the respondent is to prune, or engage a contractor to prune, the lilly pilly hedge along their eastern boundary to a height no greater than 150 mm above the top of that part of the existing boundary fence that is directly west of the applicant's living room windows W3 and W4 as numbered in the application. 3. The respondent is to give the applicant a week's notice of each pruning event in Order 2. 4. The applicant is to allow any access required for the works in Order 2 during reasonable hours of the day. 5. The exhibits are returned, other than A and B.

Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2023

(2006) 144 LGERA 289

(2021) 248 LGERA 300

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