Leen v Cuschieri

File Number(s): 2025/97363

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** As sometimes happens in neighbourhood disputes, the parties in these proceedings once cooperated and were friendly, but are now in a dispute that they are unable to resolve. Ideally, the Court would resolve the issues as much as possible, but I see no path to reach a resolution within the jurisdiction of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act).

2. Pursuant to ss 7 and 14B of the Trees Act, Karla Leen has applied to the Court seeking orders relating to a hedge along the common boundary between her property and the neighbouring property belonging to Penny and Adam Cuschieri. This long hedge is made up of around 150 photinias (Photinia × fraseri ‘Red Robin’).

3. Ms Leen claims she made a verbal ‘handshake’ agreement with Mr Cuschieri in December 2017 to establish the hedge along their common boundary. Under that agreement, Ms Leen would buy the trees and Mr Cuschieri would plant, water and maintain the trees, keeping them at a height of 1.3 metres. The current situation is different to what Ms Leen wanted. The trees are now approximately 2.2 metres tall but were possibly 2.6 metres tall before they were pruned recently.

4. The dispute extends to ownership of the trees. Ms Leen feels that she still owns the trees, as she purchased them. However, it appears that the trees are mostly planted on the Cuschieris’ side of the boundary, in which case they belong to the Cuschieris. The boundary is marked by a strand-wire fence. A few trees appear to be on Ms Leen’s side of the fence. The fence is not necessarily a true indicator of the boundary, so Ms Leen submitted that even more of the trees may be on her land. I asked Ms Leen if she would like additional time to undertake a boundary survey to determine the trees’ locations relative to the boundary. I also pointed out that she can only apply for orders relating to trees on adjoining land: ss 7 and 14B of the Trees Act. Ms Leen preferred to proceed on the basis that most of the trees are situated on the Cuschieris’ land.

5. 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 Ms Leen.

Framework for this decision

6. Ms Leen applied for orders pursuant to both s 7 (Pt 2) of the Trees Act on the basis that the trees are likely to cause injury. She also applied for orders pursuant to s 14B (Pt 2A) on the basis that the trees are severely obstructing the view from her dwelling. Most of the trees appear to be on land adjoining her land, however for reasons set out below, if the trees are on Ms Leen’s land the outcome of this decision would be no different. The orders she seeks are orders the Court can make at ss 9 and 14D of the Trees Act.

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

8. 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.

9. Whether the Court can be satisfied that the trees are likely to cause injury to any person: s 10(2)(b).

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

11. Whether trees are severely obstructing a view from Ms Leen’s dwelling: s 14E(2)(a)(ii).

12. 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

8. Ms Leen discussed the trees with Mr Cuschieri in July 2024. The discussion did not end on a friendly note. Ms Leen then emailed the Cuschieri’s suggesting some options, but these were not accepted by the Cuschieris. I am satisfied that Ms Leen made a reasonable effort to reach agreement with the Cuschieris and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the trees are likely to cause injury

9. Ms Leen submitted that a person is likely to injure themselves when maintaining the hedge. Ms Leen submitted that there is insufficient level ground between the hedge and a nearby embankment for a vehicle. Someone on foot, or on a ladder, might fall or might trip over a dog and fall down the embankment.

10. Mr Cuschieri has already pruned the hedge at its existing height without incident. In the unfortunate circumstances that a person injures themselves while maintaining the hedge, that injury would be likely be a result of unsafe work practices. It would not be an injury caused by the trees.

11. Therefore, no orders can be made under Pt 2 of the Trees Act and there is no need to consider matters at s 12.

Whether the trees are severely obstructing a view

12. The hedge is approximately 42 metres to the west of Ms Leen’s dwelling. The land slopes gently downward to the west. I observed the view from Ms Leen’s living area where she says it is obstructed by the trees. Even if the trees were taller than their current height, any obstruction of the view could not be considered severe. The trees screen elements of the Cuschieris’ property, which is a benefit for both parties. Above the trees remains the view of the distant landscape and the sky above.

13. Therefore, no orders can be made under Pt 2A of the Trees Act and there is no need to consider matters at s 14F.

Ongoing maintenance

14. The Cuschieris seem proud of their property and Mr Cuschieri intends to maintain the hedge at its current height. If the parties are able to restore their relationship, Ms Leen might gain some assistance from the Cuschieris to maintain her side of the hedge, which must be done from within her property. Otherwise, under the common law right of abatement, Ms Leen is able to prune her side of the hedge back to the boundary without requiring the Cuschieris’ permission.

Orders

15. The Court orders:

16. The application is refused.

17. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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