Armstrong v Davie

Representation: Counsel:
Mark Armstrong (Self-represented) (First Applicant)
Mary Armstrong (Self-represented) (Second Applicant)
M Fernandes (First and Second Respondents)
Solicitors:
Blunden Law (First and Second Respondents)

File Number(s): 2026/21157

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER**:** Berowra Heights neighbours Mark and Mary Armstrong (the Armstrongs) and Barbara and Alan Davie (the Davies) are in dispute about trees on the Davies’ land along the common boundary shared by the parties. With the benefit of the onsite view and hearing, it seems that neither the Armstrongs nor the Davies have been particularly unreasonable or vindictive in this dispute – two words that might be used to describe the actions of many parties in neighbours’ tree disputes. Nor does any party seem ‘wrong’ in the way they see the situation.

2. A previous owner of the Davies’ property planted two trees on the property, next to the common boundary, in the 1990s: a bottlebrush (Callistemon sp.) and a Christmas bush (Ceratopetalum gummiferum). After buying the property in 2018, the Davies planted a row of lilly pillies (Syzygium sp.), with one tea tree (Melaleuca sp.) planted in their midst, along the common boundary in 2019. The lilly pillies and the tea tree are maintained as a hedge. The bottlebrush and the Christmas bush have grown taller, even though the bottlebrush was pruned at some time.

3. The Armstrongs bought the adjoining property in 2024, especially appreciating its views from windows in the dwelling’s living areas. The Davies’ trees grew. The Armstrongs told the Davies that their views were being impacted. Some of the trees were pruned, but the Armstrongs continued to find their views impacted, so they applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the Davies, at their cost, to prune and maintain the trees at a height of 2.3 metres.

4. The final hearing took place onsite, allowing me to observe the trees, the properties and the impacted views. The Armstrongs were self-represented; Mr Fernandes represented the Davies.

Whether the trees are planted so as to form a hedge

5. Trees in the application are those described above: the bottlebrush, the Christmas bush, the row of lilly pillies and the tea tree within the row.

6. The jurisdiction of Pt 2A of the Trees Act is limited at s 14A:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that—

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

7. From the Armstrongs’ dwelling, the trees appear to form a single linear planting along the boundary. The row of lilly pillies meets, at its southern end, the bottlebrush. The Armstrongs consider that all the trees form a single hedge. The Armstrongs submitted that the Davies once agreed to prune the lilly pillies and the bottlebrush to a lower height, but then only pruned the lilly pillies.

8. The Davies agree that they planted the lilly pillies and tea tree as a hedge (the hedge), but they disagree that the bottlebrush and Christmas bush are part of the hedge.

9. ‘Hedge’ is not one of the words defined at s 3 of the Trees Act. Various cases have discussed whether different tree plantings formed a hedge. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom) at [45], the Court found:

[45] We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

10. This describes the form of the planting in a way that perhaps fits the Armstrongs’ perception of the trees. But planting formation alone is not sufficient at s 14A of the Trees Act. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), Preston CJ considered the words ‘trees that are planted so as to form a hedge’ at [28]:

28 In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

11. At [38] of Johnson, his Honour put this another way (along with the separate issue of whether a tree is planted or self-sown):

38 If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees.

12. It is not disputed, and I accept, that the Davies’ lilly pillies and the tea tree together form a single hedge. They were planted at one time, in a straight line along the boundary, and have been maintained as a hedge since.

13. According to Ms Smith, a previous owner of the Davies’ property, she planted only the bottlebrush and the Christmas bush near the common boundary. Mr Armstrong submitted that Ms Smith, in her affidavit, did not explicitly deny that the trees were planted to form a hedge, despite having the opportunity to say so. However, the trees were two different species that were planted far enough apart that, to this day, a clear gap remains between them. The foliage of these two trees does not overlap to form a single screen. If one ignores the lilly pillies, the bottlebrush and the Christmas bush do not appear to form a hedge. For this reason, I am satisfied that there was no intention to form a hedge at the time these two trees were planted. Following Johnson, the lack of such purpose means that Pt 2A of the Trees Act does not apply to those two trees, even if one or both of them might now appear to be part of a hedge.

14. The Armstrongs referred to Robinson v Nagel [2021] NSWLEC 1356, where at [15] the Court found that clumps of bamboo planted at different times all formed a single hedge. However, the circumstances there differed in that each planting event, including the first, either formed a hedge or filled in or extended a hedge. Here, the two trees planted in the 1990s were not planted with the purpose of forming a hedge.

15. The Armstrongs also referred to Thompson v Quine [2021] NSWLEC 1645 (Thompson) where it was submitted that six lilly pillies were planted with no intention to create a hedge (at [8]); but because they were planted at close and regular spacings and formed a continuous screen of dense foliage, the Court found they were planted with an intention of forming a hedge. Here the bottlebrush and the Christmas bush do not form a dense, continuous screen of foliage. Notably, in Thompson, the Court found at [9] that a bottlebrush did not form part of the lilly pilly hedge because it was a different species and was physically separate from the lilly pillies.

16. The person planting the bottlebrush and the Christmas bush in the 1990s did not have the intention of planting a hedge. As Mr Fernandes argued, the subsequent planting of a lilly pilly hedge right up to the bottlebrush, even if the bottlebrush might now perhaps appear part of the hedge, cannot retrospectively change the intent at the time of planting the bottlebrush. Similarly, if the Davies once agreed to prune the bottlebrush to the same height as the lilly pillies, that also cannot retrospectively change the intent of its planting some 30 years ago.

17. For these reasons, I find that Pt 2A of the Trees Act does not apply to the bottlebrush and the Christmas bush.

18. For much of its length, the lilly pilly and tea tree hedge is now slightly less than 2.5 metres tall, but it has been taller in the past, up to 2.7 metres according to the Armstrongs. I find that Pt 2A of the Trees Act applies to the lilly pillies and tea tree.

Orders sought relate to trees on adjoining land

19. Pursuant to s 14B of the Trees Act, the Armstrongs seek orders to remedy, restrain or prevent the trees severely obstructing a view from their dwelling. The trees are situated on adjoining land.

Nature of the orders

20. Orders for pruning and ongoing maintenance of the hedge are orders the Court can make at s 14D of the Trees Act. The Court is not required to make the orders sought by the Armstrongs, but can make orders as it sees fit having considered all relevant parts of the Trees Act.

The applicant made a reasonable effort to reach agreement

21. As to s 14E(1) of the Trees Act, the parties have discussed the trees many times. It is not contested that the Armstrongs made a reasonable effort to reach an agreement with the Davies regarding the hedge, and gave notice of the application as required by s 14C of the Trees Act.

The hedge does not severely obstruct a view

22. Before the Court makes an order in these proceedings, it must be satisfied that the trees that form a hedge are severely obstructing a view from the Armstrongs’ dwelling: s 14E(2)(a)(ii) of the Trees Act.

23. At present, the hedge does not severely obstruct a view, nor has it in the past. From the Armstrongs’ kitchen, the hedge screens only the Davies’ dwelling and garden. It does not obstruct the valley view over the Davies’ property at all. From the living area, the hedge screens only the lower part of another neighbouring dwelling, but does not obstruct the view over the dwelling. From Ms Armstrongs’ desk, where she works most days, only the bottlebrush obstructs the view, not the lilly pillies. The bottlebrush might have a negative impact on her time there, but it is not part of the hedge, and no orders can be made for it.

24. Because the trees in the hedge do not severely obstruct a view, the Court cannot make orders in these proceedings. Consideration of matters at s 14F of the Trees Act is not required.

Conclusion

25. Part 2A of the Trees Act does not apply to the bottlebrush and the Christmas bush because they were not planted so as to form a hedge. The lilly pillies and the tea tree are planted so as to form a hedge, but they do not severely obstruct a view from the Armstrongs’ dwelling, so no orders can be made.

26. It seems that the Davies have maintained trees in the hedge so that they have never exceeded 2.7 metres in height and have never obstructed a view. At times, this has apparently only followed requests from the Armstrongs, but nevertheless the hedge has been reasonably maintained. The Armstrongs are aware that, if the situation changes and trees in the hedge grow to severely obstruct their view, they may make a new application. The Davies are aware that such an application might result in Court orders for ongoing maintenance.

Orders

27. The Court orders:

28. The application is refused.

29. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Amendments

17 March 2026

First Respondent's name amended.