Fussell v Forte [2022] NSWLEC 1742

Land and Environment Court New South Wales

Medium Neutral Citation: Fussell v Forte [2022] NSWLEC 1742 Hearing dates: 10 October 2022 Date of orders: 10 October 2022 Decision date: 10 October 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The orders of the Court are: (1) Within 30 days of the date of these orders, the respondent, at her expense, shall prune the hedge between a line perpendicular to the common boundary fence which meets the south-western end of the respondent's dwelling side wall which faces the applicants' property, and the termination of the hedge near the south-western corner of the respondent's property. The hedge shall be pruned to a height not exceeding 300mm above the height of the common boundary fence, along the fairly horizontal section nearest to the respondent's dwelling, and along the adjacent main sloping section of the fence, and this sloping pruning line shall be continued to the rear of the hedge at the same trajectory, regardless of the fact that the fence steps down along its last few metres. (2) The respondent, at her expense, shall maintain the section of the hedge specified in Order (1), so that at no time in the future, following the pruning specified in Order (1), shall the hedge exceed a height of 300mm above the height of the common boundary fence, other than at the south-western end, where the specifications in Order (1) apply. (3) All pruning works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access be required to the applicants' property to undertake these pruning works, the applicants shall grant such access upon receipt of at least 48 hours written notice. (5) All works shall be undertaken during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – view obstruction – severity of obstruction outweighs privacy considerations Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2A Trees (Disputes Between Neighbours) Regulation 2019 Cases Cited: Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wisdom v Payn [2011] NSWLEC 1012 Texts Cited: Safe Work Australia 'Guide to managing risks of tree trimming and removal work', 2016 Category: Principal judgment Parties: Bradley Stuart Fussell (First Applicant) Kylie Louise Fussell (Second Applicant) Suzen Alise Joy Forte (Respondent) Representation: Counsel: H Esplin (Solicitor) (Applicants) D Loether (Solicitor) (Respondent)