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We have an owner who has grown hedges so the common property and garden is no longer visible as you enter the property. This is obvious that this is for privacy. My argument is if the owner wants privacy why can't they put a screening wall within their lot?
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Replies
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Hi bpositive
The issue is, where are the hedges?
The lot owner is not entitled to plant hedges on common property unless written approval of the owners corporation is first obtained. This is because planting hedges could be regarded as carrying out works involving common property.
There is also the possibility that the owner has committed the tort of nuisance, although further details would be required before further advice on this can be provided.
Regards
Chris Kerin
Senior Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500
1300 TEYSLAWYERS
Suite 73, Lower Deck
Jones Bay Wharf
26-32 Pirrama Rd
Pyrmont NSW 2009
No, he can't simply 'do what he likes'!
https://problemhedgesaustralia.com/
Part 2A of the Trees (Dispute Between Neighbours) Act relating to hedge disputes is now in operation. If you would like further information on this new hedge law or would like to enquire as to whether the new law would apply in your case, contact the Land and Environment Court on 02 9113 8200 or go to https://www.lawlink.nsw.gov.au/lec and see Tree Disputes.
To see the content of the Trees Amendment click here.
The amendment applies where 2 or more trees are planted to form a hedge higher than 2.5 metres.
An owner of land may apply to the Court for an order to remedy, restrain or prevent severe obstruction of:- sunlight to a window of a dwelling, or
- any view from a dwelling which occurs as a consequence of trees to which this part applies.
Before making an order, an applicant must have:- made a reasonable effort to reach agreement with the owner of the land, and
- give at least 21 days notice of the application to the owner of the land, any relevant authority and any other interested parties.
This is really interesting but I wonder if it applies within strata. After all, the owner of the land is almost certainly the Owners Corporation. I reckon it comes under the OC's duty to maintain and repair but then you have the problem of defining what that means – you can maintain a hedge by encouraging it to grow, after all.
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Hi Bpositive
The Trees (Disputes Between Neighbours) Act 2006 applies only to trees situated on any land within a zone designated “residential”, … under an environmental planning legislation. Therefore, it applies to trees on land occupied by strata schemes.
Having reviewed the Act, section 5 states:
“No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies.”
Therefore, please ignore my advice on the issue of nuisance. However, negligence and trespass may still be available as causes of action.
This Act was amended in the second half of 2010 to explicitly include hedges (in addition to trees).
However, the Act is not relevant in this situation as the hedges are on common property. Therefore, the owners corporation can resolve to remove the hedges if it so wishes.
Regards
Chris Kerin
Senior Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500
1300 TEYSLAWYERS
Suite 73, Lower Deck
Jones Bay Wharf
26-32 Pirrama Rd
Pyrmont NSW 2009Don't miss our next
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