Callaghan v Islam

File Number(s): 2025/96704

Publication restriction: Nil

JUDGMENT

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

1. COMMISSIONER: Ms Callaghan (‘the Applicant’) applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Act’), seeking orders for the Respondent to prune or remove the cypress pine trees located between the properties. The trees are located close to the Respondent’s rear boundary of 27 Meager Ave Padstow. The Applicant owns 99 Davies Road Padstow, and shares a rear side boundary with the Respondent.

2. The Respondent, Ms Islam, enjoys the privacy and amenity the pine trees provide for the rear yard and seeks to maintain the trees in their current state. The cypress pine trees are mature and have reached a height of between approximately 10 ­-­­­ 12 metres.

3. The Applicant submits that cypress pine trees have caused damage to the boundary brick retaining wall and distortion of the rear side Colorbond fence, and that shade cast by the trees as a hedge has caused deterioration of the small metal shed including causing mould and mildew and submits a claim for the Respondent to pay compensation to repair the dilapidated parts of the small metal shed and rear side Colorbond fence.

4. The Applicant is also concerned about the amount of sunlight reaching the rear of their dwelling and the side rear yard of their property and submits the amount of shade cast by the cypress pine trees onto their property is unreasonable and could easily be remedied by pruning or removal of the trees.

5. An expert report was submitted by the Respondent by Creative Planning Solution (CPS) prepared by a AQF5 arborist dated 7th May 2025. The information contained within this report is relied upon by the Respondent.

6. The application is made pursuant to s 7 Part 2 of the Act.

Framework of the Act

7. Within the Act are several jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

8. In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

9. No evidence was adduced during the hearing that leads me to conclude that the cypress pine trees have caused damage or injury, or are likely in the near future to cause, damage to the applicant’s property or cause injury to any person therefore this test is not met.

10. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit under s 9 of the Act is engaged.

11. The issues to be determined then are as follows.

12. Are the pine trees a hedge?

13. Is there a severe obstruction of sunlight caused by the hedge?

14. If so, does the Applicant’s desire for direct sunlight outweigh the reasons not to interfere with the trees? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

15. Did the shade cast by the hedge cause the dilapidation or distortion of the rear side Colorbond fence and small metal shed located in the Applicant’s rear yard?

16. Has the hedge caused damage to the boundary brick retaining wall?

17. An order must not be made unless the hedge is severely obstructing sunlight to a window of a dwelling situated on the Applicant’s land, and the severity and nature of the obstruction is such that the Applicant’s interest in having the hedge pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the hedge.

18. The following addresses matters that must be considered in determining whether orders are appropriate.

19. The hedge is located to the north of the Applicant’s property and, I observed during the onsite hearing, does cast shade during some parts of the day.

20. The hedge was planted on the Respondent’s property after the Applicant had purchased and constructed the dwelling at 27 Meager Avenue, Padstow.

21. The Respondent submits that the hedge was planted to act as a privacy hedge and for the overall amenity benefits, and that pruning or removing the hedge would diminish these attributes.

22. During the onsite hearing I observed the position of the sun relative to the dwelling and Applicant’s rear yard and resultant shade patterns and concluded that the hedge added to the loss of sunshine by approximately three hours of afternoon sun during winter, and less than this during other seasons due to the higher position of the sun during those periods. During the onsite hearing conducted in late May I observed full shade was cast onto approximately 90% of the rear yard. No access was provided to the living areas inside the dwelling by the Applicant and no submissions were made regarding the loss of sunlight to living areas inside the dwelling.

23. The Applicant purposefully limited submissions regarding the impact of the shade cast by the hedge to the rear yard area and its effects on the growth of plants and general amenity of the rear yard.

Is there a severe obstruction of sunlight?

14. The pine trees have been planted so as to form a hedge, and rise to a height of at least 2.5 metres (above existing ground level). The parties are agreed that the pine trees have been planted to form a hedge.

15. The application includes shade cast by the hedge as observed during the onsite hearing. Based on its current height, I accept that there is some obstruction of sunlight to the Applicant’s rear yard, but I do not accept that it is severe. The hedge does not cast shade that represents a complete loss of sun.

Damage to the retaining wall and Colorbond fence and small metal shed

16. The submission by the Applicant regarding the damage to the small metal shed included mould and mildew and fallen leaves on the roof.

17. The submission by the Applicant regarding the damage to the rear side Colorbond fence caused by the hedge included observations during the onsite hearing of approximately 5 – 10 mm of displacement of one of the vertical post structures of the fence near the small metal shed. The submission regarding damage lacked detail and provided no genuine evidence attributing the displacement of the fence solely to the growth of the hedge. No other submissions were made regarding the damage to the fence or small metal shed. No evidence has been adduced that clearly attributes the growth of the hedge to displacement of the fence, therefore no orders can be made.

18. The expert report by CPS dated 7th May concludes “there is no observable damage to the boundary retaining wall” and “[t]he referenced separation in the Colorbond fence which sits atop this retaining wall is less than 10mm in width and is considered unlikely to have anything to do with suggested movement within the wall.” I observed the same features of the Applicant’s rear yard during the onsite hearing and I am inclined to accept this opinion.

19. During the onsite hearing I observed a small amount of green mould and mildew on the side and roof of the small metal shed located in the Applicant’s rear yard. I also observed leaves that had fallen from the cypress pine hedge onto the roof of the shed. Given the metal shed is located outside I find it is not unreasonable to expect that some degree of exposure to the elements would result in the requirement for maintenance of the metal shed including removal of leaves and occasional cleaning.

20. There was no evidence adduced that showed debris from the hedge alone was the cause of any damage to the shed. Responsibility for property maintenance in relation to leaves and tree debris, cleaning of gutters and the like are a matter for each property owner. I see no need to make orders for damages caused by the hedge.

21. However, if I am wrong in these findings [20], as a matter of discretion the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states at [20] that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

Discretionary matters

22. An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land if the obstruction occurs as a consequence of trees being situated on adjoining land.

23. I can see nothing at s 14B of the Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Act. However, the Court has relied upon background material such as the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) in many hearings under Pt 2A, for instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462. The 2009 Review concluded, in part, (on p 35) that the scope of Pt 2A should recognise the significant health, environmental and other benefits of urban vegetation, and that there could be a presumption in favour of maintaining the existence and health of urban trees.

24. If the Applicant had of applied under Part 2A, some jurisdictional tests would have been met. I am satisfied that the Applicant has tried to reach agreement with the Respondent (s 14E(1)(a)). The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height (s 14A(1)(b)). The cypress pine hedge is a row of eight trees and has been planted so as to form a hedge (s 14A(1)(a)). The cypress pine hedge is a tree for the purpose of the Act (s 3). On these matters the parties are agreed.

25. However, as I am not satisfied that there is a severe obstruction of sunlight, orders will not be made and the application would be dismissed. However, even if I were to accept the Applicant's contention that the hedge causes a severe obstruction of sunlight, I would be required to consider the matters at s 14F before making any orders, including s 14F(l): "any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated”, (o) “the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost”, and (r) “the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed”.

26. To sufficiently restore sunlight, the hedge would need to be substantially pruned to the point where, arguably, the health and condition of the hedge may be significantly affected. The amount of sunlight lost is limited to several hours in afternoon and not a complete loss of sunlight. The part of the dwelling the subject of the application from which sunlight is obstructed is limited to the rear yard area. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 14F.

27. During the onsite hearing, an order for costs ($1150) was requested by the Respondent to recover the expenses incurred obtaining an expert report.

Statutory Power to award costs

28. Section 98 of the Civil Procedure Act 2005 relevantly provides that, subject to the rules of the Court, costs are at the discretion of the Court.

29. Rule 3.7 (1)(b) of the Land and Environment Court Rules 2007 (‘The Rules’) provides that the Court can order costs in Class 2 proceedings, which are referred to in s 19(h) of the Land and Environment Court Act 1979. However, the rule is tempered by sub rule (2), which provides:

The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or part of any of the costs is fair and reasonable in the circumstances.

30. However, r 3.10(1)(a)(iv) of The Rules states the Court functions provided in s 98 of the Civil Procedure Act 2005 including the power to make general orders as to costs are not exercisable by a Commissioner. Therefore, orders as to costs are not able to be and have not been made.

31. The expert report was obtained by the Respondent at their own volition. The Applicant did not act unreasonably during or leading up to the proceedings, did not have an improper purpose, or continue with an unreasonable defence or claim. So even if an order for costs were able to be made, I would not be making such an order in any case because I do not consider that it is fair and reasonable in the circumstances.

Conclusion

32. Given the absence of genuine evidence of any damage to the boundary retaining wall I observed during the hearing, Colorbond fence or small metal shed to attribute to the trees, the Court's jurisdiction under Part 2 of the Act is not engaged, the application is dismissed and no orders for compensation will be made.

33. Given the limited hours of loss of sunlight, the area of the Applicant’s property affected by the loss of sunlight and the potential effects of pruning on the health and condition of the pine trees (the hedge) I am not satisfied that the pine trees (the hedge) causes a severe obstruction of sunlight to the satisfy the requirements of The Act. Therefore, the Court's jurisdiction under Part 2A of the Act is not engaged.

34. As a result of the above, the application to prune or remove the cypress pine trees is dismissed.

Orders

35. The Orders of the Court are:

36. The application to prune or remove the cypress pine trees is dismissed.

37. The application for compensation made by the Applicant for repairs to the retaining wall, side rear Colorbond fence and small metal shed is dismissed.

P Nichols

Acting Commissioner of the Court

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