Legal Research
Cases
Hennessy v Unsworth

Hennessy v Unsworth

Case [2023] NSWLEC 1773 20 December 2023

Adverse Possession

Easements & Covenants

Nuisance

Property Law

No judgment structure available for this case.

Type to search within this case.

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:
J Hennessy (Agent) (Applicant)
H Grace (Respondent)
Solicitors:
Unsworth Legal (Respondent)

File Number(s): 2023/133871
Publication restriction: No

Judgment

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).
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hennessy v Unsworth

Details

AGLC: Hennessy v Unsworth [2023] NSWLEC 1773
Case: [2023] NSWLEC 1773
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the case of Hennessy v Unsworth, the applicant, Hennessy, sought relief from the Local Court of New South Wales to address an issue of neighbourly dispute concerning a hedge. Hennessy contended that a hedge on the property of Unsworth, his neighbour, obstructed the view from his living room and posed a risk of falling branches. Unsworth resisted the application on the grounds that the hedge was a part of his property and its maintenance was his sole responsibility. The court was tasked with determining whether the hedge constituted a nuisance or posed a risk to Hennessy's property and, if so, what orders should be made to mitigate the issue.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hennessy v Unsworth [2023] NSWLEC 1773

Most Recent Citation

Unsworth v Hennessy [2024] NSWLEC 82

Cases citing this decision · 2 of 2 shown

Beswick v Sandig
[2024] NSWLEC 1703 Para 35

…In Hennessy v Unsworth [2023] NSWLEC 1773 ( Hennessy), Acting Commissioner Galwey determined a view obstruction in Mosman to be severe and ordered pruning of a Lilly-Ppilly hedge in Mosman. At [15]-[16] , he said:…
Unsworth v Hennessy
[2024] NSWLEC 82 Para 6

…wice yearly, in April and October, to a height no greater than 150mm above the fence, and made some other consequential orders: Hennessy v Unsworth [2023] NSWLEC 1773. The Commissioner found the hedge severely obstructed the view from Mrs Hennessy’s house: at [24] and [52]. In forming that opinion, the Commissioner c…

View all 2 citing cases →

Cases cited in this decision · 8 of 8 shown

Koundouris v Kresner
[2022] NSWLEC 1168 Para 31

…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…
Ku-ring-gai Council v Buyozo Pty Ltd
[2021] NSWCA 177

…GERA 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 Ste…
Steber v Job
[2019] NSWLEC 1308 Para 15

…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…
Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor
[2019] NSWLEC 1215 Para 50

…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.…
Rees v Chen
[2017] NSWLEC 1502 Para 19

…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 c…
Robson v Leischke
[2008] NSWLEC 152 Para 11

…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 H…
Tenacity Consulting v Warringah
[2004] NSWLEC 140 Para 19

…017] 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 inst…
Antipas v Kutcher
[2006] NSWLEC 42 Para 11

…tutory 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…

Legislation cited in this decision · 3

Environmental Planning and Assessment Act 1979 (NSW)
1 mention
Heritage Act 1977 (NSW)
1 mention
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 2)

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: J Hennessy (Agent) (Applicant) H Grace (Respondent) Solicitors: Unsworth Legal (Respondent)
File Number(s):	2023/133871
Publication restriction:	No