Armstrong v Davie [2026] NSWLEC 38

Ex Tempore JUDGMENT

1. In these Class 2 tree application proceedings brought pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘Trees Act’), Mark Armstrong and Mary Armstrong (‘applicants’) seek orders that their neighbours, Barbara Davie and Alan Davie (‘respondents’), reduce the height of vegetation comprising various plantings, including a lilly pilly hedge, a melaleuca tree, a bottlebrush tree and a Christmas bush, situated on the boundary between their respective properties at Elizabeth Street, Berowra Heights.

2. Presently before the Court is a notice of motion filed by the respondents on 11 February 2026, seeking relief pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’), that the Court order the following question be determined separately and prior to any other issues in the proceedings:

“Does the Court have jurisdiction under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) to make the orders sought by the applicants in circumstances where the only orders sought concern:

(a) Trees that are not part of a hedge; and

(b) A Hedge that is less than 2.5 metres in height?”

3. The hearing of the motion proceeded before me this morning. Mr M Fernandes, of counsel, appeared for the respondents (the applicants on the motion). The applicants (the respondents on the motion) appeared without legal representation.

4. In their primary application, which is brought pursuant to Pt 2A of the Trees Act, which provides for the Court to grant relief regarding “high hedges” that obstruct sunlight or views, the applicants seek orders that the respondents prune and reduce the height of a hedge allegedly formed by lilly pillies, a melaleuca tree, a bottlebrush tree and a Christmas bush situated along the boundary between the properties, to a maximum height of 2.3 metres, along with some associated relief. Annexed to the application in the primary proceedings is diagrammatic and photographic material supporting the applicants’ claim.

5. The applicants contend that views they enjoy from their property are affected by the lilly pilly hedge “together with adjoining vegetation, including the bottlebrush and the Christmas bush”, which together form a “visually continuous boundary screen across the lower and mid-sections” of their outlook. They note that the lilly pilly hedge has recently been trimmed to approximately 2.3 to 2.4 metres, and that the adjoining bottlebrush tree and the Christmas bush rise well above this height to approximately 3.5 to 4 metres above ground level. They state, “the combined vegetation causes a single visual barrier” which results in views that are “substantially obscured”.

6. In his affidavit affirmed 10 February 2026, Mr Davie deposes that he and his wife planted the lilly pilly hedge, which he notes is presently trimmed to a height of about 2.3 metres, in 2019 soon after they bought their property in 2018. He deposes that the bottlebrush tree and the Christmas bush, are each standalone trees and do not form part of, or are not contained in, the hedge, and that those trees are of a similar size to when the property was purchased. He further states that the lilly pilly hedge (with the melaleuca tree) stand on a different tier of the backyard to the other two trees.

7. The respondents’ position in support of their motion may be summarised as follows. They maintain that the primary application by the applicants relies solely upon Pt 2A of the Trees Act which deals exclusively with “high hedges” that severely obstruct views. The respondents submit that while the trees comprising the hedge are lilly pillies and a melaleuca tree, the other two trees, being the bottlebrush tree and the Christmas bush, which also form part of the primary application, are not part of the hedge. In circumstances where the applicants accept that the lilly pilly hedge is currently less than 2.5 metres in height, the respondents contend that Pt 2A of the Trees Act does not apply, as the Court only has jurisdiction under that Part if there is a group of two or more trees that are planted to form a hedge that is at least 2.5 metres in height. The respondents repeat that, being much taller, older and separate freestanding trees, the bottlebrush tree and the Christmas bush are not part of the hedge, and so do not fall under the jurisdiction of s 14A of the Trees Act.

8. The respondents also submit that the evidence establishes that those freestanding trees were planted some years before the lilly pilly hedge. In those circumstances, they maintain that the Court does not have jurisdiction under Pt 2A of the Trees Act, as the bottlebrush tree and the Christmas bush were not planted so as to form a hedge at the time of planting, and therefore do not form part of the hedge, which is, in any event, below 2.5 metres in height.

9. The respondents therefore submit that the separate question, with certain amendments suggested by Mr Fernandes today, is appropriate. They also submit that they are attempting to sell their property and this dispute is hampering the timely sale.

10. The applicants read the affidavits of Mary Therese Armstrong and Mark Thomas Armstrong, each affirmed 24 February 2026, and provided written submissions.

11. The applicants’ position may also be briefly summarised. The applicants oppose the relief presently sought by the respondents and submit the separate question hinges on various factual matters including, first, whether the vegetation in issue includes the bottlebrush tree and the Christmas bush so as to collectively form a hedge within the meaning of s 14A of the Trees Act; and second, whether, at the date of commencement of these proceedings, the hedge in fact exceeded 2.5 metres. The applicants submit these factual disputes will require a hearing involving the same witnesses’ evidence and (likely) factual findings as required in a full hearing in the primary proceedings.

12. In any event, the applicants dispute the respondents’ contention as to the size and/or height of the hedge and again maintain that the lilly pillies’ foliage is merged with the bottlebrush tree and exceeds 2.5 metres above the existing ground level. The applicants further maintain that the date of the commencement of the proceedings is the date for the determination of the jurisdictional threshold, and point to the respondents’ conduct that, having been served with these tree dispute proceedings, the lilly pilly hedge was then trimmed below the 2.5 metre threshold. The applicants submit they should not be deprived of the Court's jurisdiction by what they call “selective trimming” undertaken after these proceedings were commenced.

13. The applicants dispute the measurements of the heights of the various trees deposed to in the respondents’ evidence and note that the respondents have not provided evidence of the height of the bottlebrush tree or the Christmas bush. The applicants submit that a Court would not accept the respondents’ contention that the “combined trees” form an appropriate and thus justiciable hedge.

Consideration

14. The principles applicable to whether a matter should be the subject of a separate determination under r 28.2 of the UCPR are well-known and worth reciting briefly: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [87]-[97] (Ward JA); Lawson v Minister for Environment and Water (South Australia) and the State of New South Wales [2022] NSWLEC 50 at [14]-[15].

15. First, the general rule is that all issues in any proceedings are to be determined at one time. The Court's departure from that rule requires strong reasons, such as anticipated significant savings in time and expense in relation to the final hearing.

16. Secondly, the Court must exercise its discretion to make an order for the determination of a separate question with care, given the conduct of separate trials on different issues can cause delay, extra expense, appeals and uncertainty of outcome, which they are intended to avoid.

17. Thirdly, it is for a party seeking the order, in this case the respondents, to show the Court that a separate determination of a question is appropriate.

18. Fourthly, an order is likely to be appropriate where it can facilitate the just, quick and cheap resolution of proceedings or the central issues in the proceedings, so as to give effect to s 56 of the Civil Procedure Act 2005 (NSW).

19. Fifthly, the factors which support the making of an order include where such an order may contribute to, first, the prompt disposal of crucial issues in litigation; second, the saving of time and costs by the narrowing of the issues; and third, the potential for settlement of the litigation.

20. Sixthly, the matters where a court is unlikely to consider the determination of a separate question appropriate include, first, where there are intertwined issues of fact and law and a separate question is likely to result in fragmentation of the proceedings; second, where there is likely to be a significant overlap between the evidence adduced on the separate question and any residual questions; and third, where the determination of a separate question is likely to involve issues as to credibility of witnesses whose evidence is likely immaterial to the remaining issues in dispute.

21. In addition to the above, it should also be remembered that tree application matters in Class 2 proceedings in this Court are conducted by experienced, qualified expert arborists. The Court is therefore well equipped to determine at hearing any preliminary question that may be raised. It is trite to note that a court must always be satisfied of its power to grant relief before exercising jurisdiction.

22. In considering and applying those principles to the current proceedings, leaving aside the fact that it is unlikely that questions of the credibility of witnesses will be involved, I consider that it is inappropriate for the question as proposed by the respondents to be determined separately and prior to the substantive hearing in this matter. My reasons may be shortly stated.

23. It is clear that there are a number of factual disputes which may affect the jurisdiction of the Court to grant relief and will require determination. The matters which I consider should be decided at a hearing include:

24. The height of each of the lilly pilly hedge, the melaleuca tree, the bottlebrush tree and the Christmas bush;

25. Whether there is in fact a “consolidated” hedge, that is, whether the Christmas bush and the bottlebrush tree, let alone the melaleuca tree, are part of the hedge;

26. What the height of the hedge was at the date of the commencement of the primary proceedings and whether at all that is a matter of relevance;

27. Whether the melaleuca tree itself, given the history of its planting, forms part of the hedge;

28. Whether the different tiers or levels of the land mean that the height of any of the vegetation is to be separately determined and whether this, in any event, is relevant to the matters to be considered under the Trees Act; and

29. Whether there is, or will be, a severe obstruction of views.

30. Apart from those matters, it is clear to me that whatever evidence is required to determine the preliminary question as it is presently proposed, would likely be required in any further substantive hearing if the separately determined question was decided in favour of the applicants, such that there would be little, if any, saving of costs. Indeed, as the applicants suggest, I remain conscious of the likely increase in costs resulting from a possible duplication of evidence. Moreover, I remain conscious of the matters noted at [23] above.

31. In considering all those circumstances, I am of the view that it is inappropriate to order the relief otherwise sought in the motion.

32. The motion is dismissed and I make no order as to costs.

Orders

27. The Court makes the following orders:

28. The Notice of Motion filed 11 February 2026 is dismissed.

29. Leave is granted for the parties to approach the Registrar for allocation of a hearing date at the earliest opportunity.

30. No order as to costs.

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