Gray v Hamilton

Category: Principal judgment

Parties: Linda Gray (Applicant)
Michael Hamilton (First Respondent)
Robyn Hamilton (Second Respondent)

Representation: Counsel:
A Dewell (Solicitor) (Applicant)
M Hamilton (Self-represented) (First Respondent)
R Hamilton (Self-represented) (Second Respondent)
Solicitors:
McPhee Kelshaw (Applicant)

File Number(s): 2025/154317

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Linda Gray and Michael and Robyn Hamilton are neighbours in Springwood, in the Blue Mountains. Ms Gray has applied to the Court seeking orders for the Hamiltons to maintain trees growing on their property along the common boundary.

2. The hearing took place onsite, allowing me to observe the trees and both properties. Mr Dewell represented Ms Gray; the Hamiltons were self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties. Ms Gray provided a report by Chantelle Brackenridge Hughes, arborist of Treeism Arboricultural Services; the Hamiltons provided a report by Tom Hare, arborist of Truth About Trees.

Framework for this decision

3. Ms Gray applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). She claims that the Hamiltons’ trees are likely to damage her property and that their bamboo hedge obstructs sunlight to her dwelling windows. The trees are on land adjoining her land. The orders she seek are orders the Court can make at ss 9 and 14D of the Trees Act.

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

5. Whether the applicant has 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).

6. Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person (s 10(2)).

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

8. Whether trees are severely obstructing sunlight to windows of Ms Gray’s dwelling (s 14E(2)).

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

Reasonable effort to reach agreement

5. Correspondence in Ms Gray’s application shows that the parties discussed the trees and their maintenance over a period but were unable to reach agreement on a suitable outcome. I am satisfied that Ms Gray made a reasonable effort to reach agreement with the Hamiltons and that the timeframe set down by the Court has allowed for the required notice of the application.

Trees in the application

6. Ms Gray applied for orders for the following trees along the common boundary (from nearest the front boundary):

7. A grevillea (Grevillea sp.) approximately 4 metres tall

8. A bamboo hedge (possibly slender weavers) approximately 5 metres tall

9. A camellia (Camellia sp.) hedge less than 2 metres tall

10. A flame tree (Brachychiton acerifolius) approximately 15 metres tall

11. A bottlebrush (Callistemon sp.) approximately 4 metres tall

12. A jacaranda (J**acaranda mimosifolia) approximately14 metres tall.

Whether the trees are likely to cause damage or injury (Pt 2 application)

7. Ms Gray claims that the Hamiltons’ trees may damage her property or cause injury in several ways.

Bushfire risk

8. Ms Gray submitted that trees planted so close to her dwelling increase the risk to her property during bushfires. The Hamiltons submitted that their trees are high moisture-holding species and unlikely to increase bushfire risk. They pointed to other elements of Ms Gray’s property that they thought posed a greater risk during bushfires.

9. The Court has long held that damage caused by fire is not to be confused with damage caused by trees, so bushfire risk is unlikely to give the Court a reason to make orders under the trees Act: see Freeman v Dillon [2012] NSWLEC 1057 at [84]-[86].

Debris falling onto the roof and gutters

10. Ms Gray’s application raised the issue of debris falling onto her roof and into her gutters. She is also concerned about seed pods and other debris creating slip hazards on her path. However her application lacks sufficient evidence to demonstrate that any debris is likely to cause damage or injury. But even if debris is likely to cause damage or injury, the amount of debris here is no more than that seen in many cases before the Court where the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20] has been consistently applied:

“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.”

Mould

11. Ms Gray submitted that shading from the Hamiltons’ trees increases the growth of mould on her dwelling wall and contributes to dampness on her property. The side wall of her dwelling, adjacent to the common boundary, faces southwest. The Hamiltons submitted that they also have mould issues on their property as a result of the damp Blue Mountains environment, high rainfall periods, and the aspect of their dwelling.

12. I cannot be sure that Ms Gray’s mould issue would be any different if vegetation along the common boundary were reduced. But even if that were the case, the court extended the principle of property maintenance in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [14]:

“…for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like.”

13. I will not make orders on this element of the application.

General maintenance of vegetation

14. The trees that are the subject of this application did overhang the common boundary more extensively, as shown by photographs. But Ms Gray pruned the flame tree and jacaranda in 2022, and since then the Hamiltons have undertaken more maintenance to remove or reduce overhang of all of these trees. I observed the trees and noted that the smaller trees do not significantly overhang the boundary, while the taller trees, being the flame tree and jacaranda, have had lower branches removed and upper branches reduced over Ms Gray’s property. These trees have not caused damage, nor are they likely to cause damage in the near future or injury to a person.

15. As a result, the Court cannot make orders to interfere with these trees under Pt 2 of the Trees Act, and there is no need for the Court to consider matters at s 12. I note that the Hamiltons have maintained their trees and intend to continue this maintenance.

Whether trees severely obstruct sunlight (Pt 2A application)

The camellia hedge

16. A camellia hedge along the boundary is less than 2.5 metres tall. Pt 2A of the Trees Act does not apply to this hedge: s 14A of the Trees Act.

The bamboo hedge

17. The Hamiltons’ bamboo hedge is approximately 5 metres tall. It is southwest of a room in Ms Gray’s dwelling – a room that was a bedroom and is now used as a storage room. The Hamiltons have stripped all foliage from the bamboo up to about 3 metres, so that only the upper 2 m contains foliage. They submitted that they did this to allow more light to Ms Gray’s windows. They planted the bamboo hedge to reduce glare from Ms Gray’s roof.

18. Ms Gray submitted that the bamboo obstructs light to her room, which is now much darker than it used to be. The Hamiltons submitted that their house and the flame tree block sun.

19. Without the benefit of shadow diagrams, I rely on my own observations and common knowledge of the sun’s movement through the sky. The window faces southwest. The bamboo would not obstruct winter sunlight. It may obstruct some summer light, but only for a very short period during the afternoon. The flame tree and the Hamiltons’ house obstruct greater amounts of sunlight. It is even possible that the bamboo obstructs no direct sunlight. Mr Dewell explained that it is not direct sunlight, but indirect sunlight that is the issue. In fact, he said, direct sunlight to this window in summer might be undesirable. The Court has interpreted the word ‘sunlight’ to refer to direct sunlight rather than just daylight: see Drewett v Best [2010] NSWLEC 1305 at [17]. I cannot be satisfied that the bamboo obstructs direct sunlight to Ms Gray’s window, so no orders can be made under Pt 2A of the Trees Act, and there is no need for the Court to consider matters at s 14F.

Orders

20. The Court orders:

21. The application is refused.

22. The exhibits are returned, other than exhibit A.

D Galwey

Acting Commissioner of the Court

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