We all love trees and hedges in our gardens (and even our neighbour’s gardens). What, however, can we do when our neighbour’s hedge grows a little too high and starts to impact on our views or access to sunlight?
The Trees (Disputes Between Neighbours) Act 2006, when initially introduced, did not provide for any remedy for hedges impacting on view or sunlight. However, Part 2A was introduced into the Act in 2010 to specifically address this issue. This new section allows an appeal to be filed with the Land & Environment Court to seek orders to remedy and restrain a painful hedge.
The relevant legal tests are:
- A group of 2 or more trees that are at least 2.5 metres above ground level;
- That are planted to form a hedge; and
- There is a severe obstruction of sunlight and/or to views from a window.
Without getting bogged down in the detail of what is or is not a window, of importance to the Court’s consideration of whether orders will be made is the nature of the room, when the trees were planted, the amenity values of the trees and any heritage values of the trees.
The Court’s discretion in this regard in unfettered.
By way of example, the loss of sunlight to a window in a utility room is very unlikely to result in any order of the Court, whereas the opposite would apply to a room used regularly for daily activities (such as a dining room or kitchen).
Similarly, if the only view lost is from one dining chair, then the Court is reluctant to make any orders.
If the hedge was already causing the view or sunlight loss when the applicant purchased their property, then applying an analogous approach to that of the common law of nuisance, the Court will not make any orders.
The nature of any orders made by the Court will be for the owner of the hedge to trim it to a specific height between specific dates annually.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues.