Land and Environment Court
New South Wales
Medium Neutral Citation: Hennessy v Unsworth [2023] NSWLEC 1773 Hearing dates: 20 July 2023 Date of orders: 20 December 2023 Decision date: 20 December 2023 Jurisdiction: Class 2 Before: Galwey AC Decision: 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.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – reasonable effort – obstruction of views – whether the obstruction is severe – benefits of the hedge – privacy – whether privacy includes a feeling of privacy – whether the applicant’s dwelling is compliant – orders for pruning
Legislation Cited: State Environmental Planning Policy (Biodiversity and Conservation) 2021
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14E, 14F
Cases Cited: Antipas v Kutcher (2006) 144 LGERA 289; [2006] NSWLEC 42
Koundouris v Kresner [2022] NSWLEC 1168
Ku-ring-gai Council v Buyozo Pty Ltd (2021) 248 LGERA 300; [2021] NSWCA 177
Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215
Rees v Chen [2017] NSWLEC 1502
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Steber v Job [2019] NSWLEC 1308
Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category: Principal judgment Parties: Lucy Elizabeth Hennessy (Applicant)
Amanda Unsworth (Respondent)Representation: Counsel:
Solicitors:
J Hennessy (Agent) (Applicant)
H Grace (Respondent)
Unsworth Legal (Respondent)
File Number(s): 2023/133871 Publication restriction: No
Judgment
Background
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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.
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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).
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The hearing took place onsite, allowing the Court to observe the respondent’s trees, the applicant’s views, and other relevant features. The Court went…
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- AGLC
- Hennessy v Unsworth [2023] NSWLEC 1773
- Case
- [2023] NSWLEC 1773
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the hedge constituted a nuisance under common law principles. The court considered whether the hedge's maintenance or lack thereof caused an unreasonable interference with Hennessy's use and enjoyment of his property. Additionally, the court had to assess whether the hedge posed a significant risk of harm, thus justifying an order to control its height and maintenance. The court also needed to balance the rights of property owners to maintain their land against the need to prevent nuisance and potential harm.
In its decision, the court found that the hedge did indeed constitute a nuisance, as it obstructed Hennessy's view and potentially posed a risk of harm. The court acknowledged the importance of property rights but emphasised the need to protect neighbouring properties from unreasonable interference. The court ordered that Unsworth prune the hedge twice yearly to a specified height, provide notice of the pruning, and allow Hennessy access for the works. The court's decision reflected a balance between the rights of property owners and the need to prevent nuisance and potential harm.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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