Hills v Lennon

Parties: Martin Hills (First Applicant)
Anne-Maree Hills (Second Applicant)
Cynthia Lennon (First Respondent)
Michael Lennon (Second Respondent)

Representation: Counsel:
M Hills (Self-represented) (First Applicant)
A Hills (Self-represented) (Second Applicant)
A Pacini (Solicitor) (First Respondent)
M Lennon (Self-represented) (Second Respondent)
Solicitors:
Hammond Nguyen Turnbull (First Respondent)

File Number(s): 2025/242858

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Martin and Anne-Maree Hills (the Hills) moved into their Lilli Pilli property in 2015. They say that, at that time, they had views of Port Hacking River from the rear of their dwelling, which faces southwest. From parts of their dwelling those views are now obstructed by trees that, for all appearances, are growing on the property behind them, owned by Cynthia and Michael Lennon (the Lennons). The Hills have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the trees to be removed, or else pruned to the height of the dividing fence, to restore their view.

2. The Lennons say the trees are on land vested in Sutherland Shire Council (Council) and, for this reason and others, the Court has no jurisdiction to make orders.

3. The onsite hearing allowed the Court to view the trees and both properties.

Whether Pt 2A of the Trees Act applies to the trees

4. The jurisdiction of Pt 2A of the Trees Act is restricted at s 14A, applying only to groups of 2 or more trees that are planted so as to form a hedge and that rise to a height of at least 2.5 metres. Various species including golden cane palms and other palms have been planted in a raised bed on the Lennons’ side of the dividing fence. The planting extends from the Lennons’ dwelling, behind the Hills’ eastern neighbours, westwards behind the Hills’ land to their south-western corner. The plants, most of which are around 4 metres tall, are planted closely such that their foliage forms a continuous screen above the dividing fence. For the purposes of the Trees Act, I find that they are trees that are planted so as to form a hedge. Mr Pacini, acting for Ms Lennon, submitted that three taller palms at the eastern end of the row are not part of the hedge; whereas the Hills submitted that, regardless of their height, those three palms are the same species as adjacent palms and do form part of the hedge. I adopt the Hills’ submissions and regard the three taller palms as part of the hedge. I find that the trees satisfy the requirements of s 14A(1) of the Trees Act.

5. However s 4 of the Trees Act restricts the application of both Pt 2 and Pt 2A:

4 Act applies to trees on certain land

(1) This Act applies only to trees situated on the following land—

(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,

(b) any land of a kind prescribed by the regulations for the purposes of this section.

(2) This Act does not apply to trees situated on—

(a) any land that is vested in, or managed by, a council, or

(b) any land of a kind prescribed by the regulations.

(3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.

(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

6. The land is zoned E3 Environmental Management, but I am satisfied that, with regard to its purpose, the zone has the substantial character of a residential zone: s 4(1) of the Trees Act.

7. A 915-mm wide drainage reserve that runs between the properties is vested in Sutherland Shire Council, although Council has no access to it and it appears as part of the properties. Relying on a survey plan produced by the Hills, another in Ms Lennon’s affidavit (Annexure B of Exhibit 1), and a SIX Maps aerial image tendered by Mr Pacini (Exhibit 2) showing the drainage reserve’s location, I cannot be satisfied that the trees are principally situated on the respondents’ land. Rather, at ground level, all trees appear to be entirely or principally within the drainage reserve, the southern edge of which, for most of its length, reaches almost to the retaining wall supporting the raised garden bed that is on the respondents’ side of the dividing fence and that otherwise appears to be on the respondents’ land. As a result of this, the Trees Act does not apply to these trees: s 4(2)(a) of the Trees Act.

8. Should I be wrong on this, for any orders to be made, the jurisdictional tests at s 14E of the Trees Act must be satisfied.

Reasonable effort to reach agreement

9. I am satisfied that the Hills made a reasonable effort to reach agreement with the Lennons: s 14E(1)(a) of the Trees Act. Any response they received to their correspondence made it clear to them that their wishes would not be met. I am also satisfied that the timeframe set down by the Court allowed for the required notice of the application: s 14E(1)(b).

The trees are not severely obstructing a view

10. I am not satisfied that the trees severely obstruct a view from the Hills’ dwelling: s 14E(2)(a)(ii). The view from their first-floor living room and deck, even by their own admission, is not obstructed. They merely complain that the trees are unsightly and require maintenance from their side.

11. Some of the trees, but not the three taller ones mentioned earlier, obstruct water views to the southwest from the Hills’ ground floor poolside deck and living room. However, this obstruction is not severe for three reasons. First, a water view remains further to the west, so the view is only partially obstructed by the trees, a consideration at s 14F(q) of the Trees Act. Second, the view is from the downstairs area, not the principal living area on the first floor: s 14F(r). Third, the Lennons’ development consent requires them to plant vegetation along their street boundary to reach a height of at least 4 metres: s 14F(e). This is a short distance south of the subject trees and will likely cause a similar view obstruction from the Hills’ ground floor.

12. Because I find that the trees do not severely obstruct a view, s 14E(2)(a) of the Trees Act prevents any orders being made, even if the trees were on the Lennons’ land, and the application for orders must be refused.

Orders

13. The Court orders:

14. The application is refused.

15. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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