Farrugia v Barrett

Parties: Paul Farrugia (First Applicant)
Monica Farrugia (Second Applicant)
Ben Barrett (First Respondent)
Lucy Barrett (Second Respondent)

Representation: Counsel:
P Farrugia (Self-represented) (First Applicant)
M Farrugia (Self-represented) (Second Applicant)
B Barrett (Self-represented) (First Respondent)
L Barrett (Self-represented) (Second Respondent)

File Number(s): 2025/262882

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Paul and Monica Farrugia (the applicants) have applied to the Court for orders pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). Their application concerns a row of 14 lilly pillies and one viburnum on the adjoining property to their north owned by Ben and Lucy Barrett (the respondents). Their Pt 2 application is made on the basis that the trees are likely to cause damage to their property. Their Pt 2A application is made on the basis that the trees obstruct sunlight to their windows and a view from their dwelling. They want the trees removed.

2. The hearing took place onsite, allowing me to observe the trees and both properties and to hear submissions from the parties, who were self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties.

Framework for this decision

3. Relevant issues to be determined in these proceedings are:

4. Whether the applicants have made a reasonable effort to reach agreement with the respondents and given the required notice of the application: ss 10(1)(a), and 14E(1)(a) of the Trees Act.

5. Whether the Court can be satisfied that the trees have caused, or are likely to cause, damage to the applicants’ property: s 10(2)(a) Trees Act.

6. How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made under the Pt 2 application.

7. Whether trees are severely obstructing sunlight to, or a view from, the applicants’ dwelling, and whether their interests in remedying the obstruction outweigh reasons to avoid interfering with the trees: s 14E(2) Trees Act.

8. How consideration of the relevant matters at s 14F of the Trees Act should influence any orders to be made under the Pt 2A application.

Reasonable effort to reach agreement

4. The Farrugias wrote to the Barretts and spoke with them, asking them to prune or remove the trees. It was apparent to them that the Barretts would not provide the outcome they sought. I am satisfied that the Farrugias made a reasonable effort to reach agreement with the Barretts and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

5. The lilly pillies are planted closely in a straight row in a narrow garden bed along the Barretts’ side of the dividing fence. The lilly pillies are approximately 4 metres tall but were taller before being pruned recently. The viburnum is around 2 metres tall but was also taller until recently. The trees are on land that adjoins the applicants’ land and are planted so as to form a hedge. Both Pt 2 and Pt 2A of the Trees Act apply to the trees.

Whether the trees are likely to cause property damage

6. The Farrugias submitted that the trees have not caused any damage but are likely to do so because they are planted so close to the dividing fence. I observed the trees, many of which are planted within 300 mm of the fence, yet they have reached semi-maturity, with stems around 15 centimetres cm in diameter, without damaging the fence. No substantial parts of the trees are in contact with the fence. The trees will eventually outgrow the narrow garden bed in which they are planted, but are more likely to damage the Barretts’ retaining wall before they damage the fence. There is no evidence to show that they are likely to damage the dividing fence or parts of the Farrugias’ property such as the paving in the near future. They are also unlikely to cause injury to anyone. Therefore, according to s 10(2) of the Trees Act, the Court must not make any orders under the Pt 2 application, and there is no need to consider the matters at s 12.

Whether the trees severely obstruct sunlight or a view

Sunlight obstruction

7. The Farrugias claim that the Barretts’ trees obstruct sunlight to windows of their dining room,: two windows that open to their covered balcony (V3 and V4 in their application) and a window in their side wall facing north (V5). They also claim the trees obstruct sunlight to their clothesline.

8. At s 14E(2)(a)(i) of the Trees Act, the Court must not make an order unless it is satisfied that the trees “are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land.” The Court considers ‘sunlight’ here to refer to direct sunlight, not just ambient daylight: see Drewett v Best [2010] NSWLEC 1305 at [17]. The obstruction must be to a window of the applicants’ dwelling, not their clothesline.

9. The Farrugias provided no evidence to demonstrate that sunlight is severely obstructed to any window. The only evidence comes from the Barretts, who provided photographs taken in July, before pruning reduced the height of the trees. The photographs show, at most, only partial obstruction of sunlight to the side window (V5). The obstruction would diminish further from the winter solstice. Sunlight to the main dining room windows, V3 and V4, is not obstructed at all by the trees. Sunlight to those windows is principally obstructed by the ceiling of the covered balcony. The Farrugias complained that their kitchen and living areas are dark and they must use lights during the day, but this results from the design of their dwelling, the obstruction of direct sunlight caused by their own dwelling, and some obstruction of ambient light caused by the trees. The trees do not cause a severe obstruction of direct sunlight to a window of the Farrugias’ dwelling.

View obstruction

10. The principal view from the Farrugias’ dwelling is to the back, which is to the east, from their living area. This view is uninterrupted by the trees, which are to the north. The Farrugias submitted that the view across the side boundary includes a water view from some points. They took the Court to their laundry to point out that view, saying that they would have the same view from their living area were it not for the neighbouring trees. However, from all areas that I observed the view across the side boundary, including from the covered balcony and the living area, I noted that no water view would be gained by removing the subject trees. From the living area and balcony, trees and other vegetation more distant from the Farrugias’ dwelling, some possibly on the respondents’ property and some certainly on other properties further to the northeast, obstruct any view of the water. The general landscape view to the east remains unaffected. The subject trees do not severely obstruct a view from the Farrugias’ dwelling.

No severe obstruction

11. Because the subject trees do not severely obstruct sunlight to the Farrugias’ windows or a view from their dwelling, according to s 14E(2)(a) of tThe Trees Act the Court must not make any order under the Pt 2A application. There is no need to consider the matters at s 14F.

Conclusion

12. As a result of the foregoing, both the Pt 2 application and the Pt 2A application are refused. I note that the trees are close to the boundary; they cause some minor nuisance for the applicants and are a source of animosity between the parties. The Barretts submitted that they will continue to maintain the trees around their current height, and have offered to prune the Farrugias’ side of the lilly pilly hedge. That would require access to the Farrugias’ property, which is a matter for the parties as the Court can make no orders on the application.

Orders

13. The Court orders:

14. The Pt 2 application is refused.

15. The Pt 2A application is refused.

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

D Galwey

Acting Commissioner of the Court

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Amendments

03 October 2025

Amendment to jurisdictional type.