Liney v Friend

File Number(s): 2025/64185

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Steven Liney has applied to the Court seeking orders for his neighbours, Tony and Dianne Friend, to prune and maintain trees on their property. Mr Liney claims that the Friends’ trees obstruct sunlight to, and views from, the dwelling on his Corlette property where he lives with his family. Mr Liney claims that the Friends’ trees will also obstruct views and sunlight for a second dwelling he proposes to build on his property.

2. The hearing took place onsite, allowing me to observe the Friends’ trees and the benefits they provide to the Friends, and Mr Liney’s property and the impacts of the trees to sunlight and views on his property. The parties were self-represented.

Framework for this decision

3. The application is made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The trees are on land adjoining the applicant’s land. The orders he seeks are orders the Court can make at s 14D of the Trees Act. Therefore, relevant issues to be determined in these proceedings are:

4. Whether the trees are ones to which Pt 2A of the Trees Act applies: s 14A of the Trees Act.

5. Whether the applicant has made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 14E(1).

6. Whether the Court can be satisfied that the trees are severely obstructing sunlight to the applicant’s windows or views from the applicant’s dwelling: s 14E(2)(a).

7. Whether the Court can be satisfied that the applicant’s interests outweigh reasons for not interfering with the trees: s 14E(2)(b).

8. If orders are to be made, how consideration of the relevant matters at s 14F of the Trees Act should influence those orders.

9. When considering below the extent of any sunlight or view obstruction, I consider only the trees’ impacts to the existing dwelling on Mr Liney’s property. He may or may not construct a second dwelling in future, but the Trees Act does not provide jurisdiction for the Court to consider the trees’ impacts to dwellings that do not exist at the time that the matter is determined.

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

5. Trees that are the subject of Mr Liney’s application grow on the Friends’ property adjacent to the common boundary they share with Mr Liney. From the south, they are:

6. T1–T8, a row of 8 magnolias (Magnolia grandiflora cv.)

7. T9, a tree fern

8. T10–12, a row of 3 magnolias (Magnolia grandiflora cv.)

9. T13 and T14, two frangipanis (Plumeria sp.)

10. T15, a jacaranda (Jacaranda mimosifolia)

11. The magnolias and frangipanis are planted in rows along the boundary. Their purpose is to provide screening between the properties. They are both species that can readily be pruned and maintained at relatively short heights. They appear to have been planted to form hedges and they fulfil that intention. They rise to more than 2.5 metres tall. They are trees to which Pt 2A of the Trees Act applies.

12. The tree fern (T9) is the only tree of this species along the boundary; it cannot be pruned to maintain it a low height; it does not form part of a hedge. Therefore Pt 2A of the Trees Act does not apply to the tree fern.

13. The jacaranda (T15) is also the only example of its species along the boundary. The Friends planted it at a different time to other trees. The species is not usually grown as a hedge and this tree does not appear to be part of a hedge. Therefore, Pt 2A of the Trees Act does not apply to the jacaranda.

Whether the applicant made a reasonable effort to reach agreement

9. Mr Liney first raised his concerns relating to the trees with the Friends in November 2024. Mr Liney followed this up via a phone call in January 2025, asking for the magnolias to be pruned. The Friends explained that they were unwilling to carry out the pruning that Mr Liney requested. However, soon afterwards, the Friends’ handyman pruned the row of magnolias, reducing their height by approximately 2 metres. Mr Liney sent a further email acknowledging the pruning but also explaining that other trees still caused issues. Mr Liney provided evidence of the correspondence with his application. I am satisfied that Mr Liney has made a reasonable effort to reach agreement with the Friends and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the trees severely obstruct sunlight

10. Mr Liney provided diagrams showing the sun’s movement through the sky and its angles at certain times. He did not provide any shadow diagrams, but estimated the number of hours of sunlight obstruction and the amount blocked for each window. With the benefit of the onsite view, I found his estimates to be significantly exaggerated.

11. Mr Liney took the Court to the study on his ground floor, which is in the eastern part of his dwelling, farthest from the common boundary and the trees. Windows in this room were not identified in his application. I observed that the Friends’ magnolias and frangipanis could not cause any sunlight obstruction to these windows.

Window W1

12. Window W1 is in Mr Liney’s living room on the first floor of his dwelling at its north-western corner, nearest to the common boundary and the trees. Mr Liney submitted that the magnolias T6–T8 obstruct 30% of the available sunlight for 4.5 hours in summer (4 February) and 80% of the sunlight for 4.3 hours in winter (4 June).

13. Standing at W1, I pointed out to Mr Liney that the window faces slightly west of north, and the magnolias are several metres to the west, so it seemed impossible that those trees would obstruct sunlight to W1 at 12:20 pm in winter as he claimed. He responded that he based his figures on his fears of what would happen if the trees were left to grow. However, no matter what height the trees reach, they could not obstruct sunlight to this window until later in the afternoon in winter. In summer, the tree’s ability to obstruct sunlight to W1 would be limited by the window’s northerly aspect.

14. I find that the trees do not severely obstruct sunlight to W1.

Window W2

15. Window W2 is in a bedroom on the ground floor, below W1. Like W1, it faces slightly west of north. Mr Liney submitted that magnolias T6–T8 obstruct 100% of the available sunlight for 4.5 hours in summer and 100% of the sunlight for 4.3 hours in winter.

16. Being on the ground floor, this window might receive a little more shade from the trees than W1, but for the same reasons I gave above, the obstruction could not be considered severe. Sunlight is freely available to this window from early morning to mid-afternoon. The trees do not severely obstruct sunlight to W2.

Windows W3 and W4

17. Windows W3 and W4 are west-facing windows on Mr Liney’s first floor in the living room and kitchen. The magnolias T1–T8 are a short distance to the west of these windows. They grew taller than the windows before they were pruned in January 2025. They now reach a height equivalent to the tops of the windows. Mr Liney submitted that the magnolias T1–T8 obstruct 50% of the available sunlight for 6.3 hours in summer and 90% of the sunlight for 4.3 hours in winter. Mr Liney submitted that the trees grew over the boundary so that branches were closer to his dwelling, increasing their obstruction of sunlight. Mr Liney said that he wants the comfort of orders from the Court to assure that the trees will be pruned in future.

18. The Friends submitted that they value the privacy provided by the trees. They claimed that they prune the magnolias every August, but missed the August 2024 pruning. They stated that they intend to continue annual pruning of the magnolias.

19. Trees T1–T8 appear to have grown approximately 30 cm at their tops since they were pruned in January 2025 and are now almost 6 metres tall. At this height, they would not cause the obstruction claimed by Mr Liney and I would not consider the obstruction they cause to be severe. Before the trees were pruned in January, the obstruction was greater, and may have been severe.

20. Considering that trees T1–T8 provide valued privacy for the Friends, it is clearly in their interest to prune the trees regularly, as this will maintain a denser screen from ground level up to Mr Liney’s window height. Neglecting to prune the trees would allow the trees’ height to increase while foliage on their lower branches would become more sparse. For this reason, I take at face value the Friends’ statement that they intend to maintain the trees annually. Therefore it is unlikely that these trees will severely obstruct sunlight to W3 and W4.

21. While Court orders might provide Mr Liney with some comfort in future, the Court can only make orders to remedy, restrain or prevent a severe obstruction. I find that the trees do not severely obstruct sunlight to W3 and W4.

Window W5

22. Window W5 is a west-facing window in the laundry on Mr Liney’s ground floor. Mr Liney submitted that magnolias T1–T8 obstruct 100% of sunlight for 6.3 hours in summer and 100% of sunlight for 4.3 hours in winter.

23. I accept that W5 can only receive afternoon sunlight due to its aspect and that the magnolias obstruct nearly all of the available sunlight. This could reasonably be considered to be a severe obstruction. Before making any orders, the Court is required to consider matters at s 14F of the Trees Act, including:

…

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

…

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed.

…

24. The magnolias would need to be reduced to a height of 3 metres or less to prevent them obstructing sunlight to the laundry window. This would require cutting into old wood; it would leave the trees disfigured; it would make them more vulnerable to disease pathogens; and it would cause greater amounts of regrowth, requiring more frequent pruning to maintain the lower height (s 14F(k)).

25. The Court gives greater weight to sunlight and view obstruction for living areas, where dwelling occupants are likely to spend more time, than for utility areas such as laundries or bathrooms (s 14F(r)). When weighing the benefits to be gained for the applicant – a greater amount of sunlight to his laundry – against the negative impacts to the trees of the pruning required to prevent the sunlight obstruction, I find against making orders to interfere with the trees on this element of the application: s 14E(2)(b).

26. Mr Liney submitted that the magnolias obstruct sunlight to the clothesline outside his laundry, but s 14E(2)(a)(i) restricts the Court’s jurisdiction to trees obstructing sunlight to a window of a dwelling.

Whether the trees severely obstruct a view

27. Mr Liney’s application included four viewing points in his dwelling from where he submitted that the Friends’ trees severely obstruct his views. Mr Liney’s north-facing windows have an expansive view over the dwellings downslope to the Karuah River. His west-facing windows provide an outlook to nearby dwellings.

View V1

28. View V1 is from Mr Liney’s north-facing living room window on his first floor (see window W1 above). The primary view is to the north and takes in the local neighbourhood in the near distance, Karuah River water views in the middle distance, and the more distant landscape of Pindimar and Corrie Island. It is a very pleasant outlook. Mr Liney submitted that magnolias T5–T8 obstruct 30% of the view from this window.

29. With the benefit of the onsite view, during which we stood at this window to observe the view and the trees, I find that the magnolias obstruct part of the view to the northwest. That part of the view includes nearby dwelling rooftops and the sky above. The best parts of the view, to the north, remain unaffected by the trees. Considering the trees’ impact on the overall view from the living room, I find the obstruction they cause is negligible. I use here the qualitative terms (negligible, minor, moderate, severe or devastating) in the view-sharing principle in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 at [28]. The trees are not severely obstructing view V1.

View V2

30. View V2 is from a north-facing bedroom room window on the ground floor (see window W2 above). This is beneath window W1, so the outlook is similar to view V1. Mr Viney submitted that trees T6–T14 obstruct 75% of the view from this window. He provided four photographs that he stated at question 9 of his application (Form G, Exhibit A) were taken from this window. Those photographs show the Friends’ trees obstructing a view.

31. With the benefit of the onsite view, it became clear the Mr Liney’s photographs were taken from points nearest the Friends’ trees and pointing the camera in the direction of the trees. The principal view from this window is to the north, taking in the same elements as those described in view V1 above. Perhaps for a person lying on the bed in this bedroom the trees obstruct a greater part of the view. But closer to the window, the principal view to the north remains. The trees’ obstruction to view V2 is minor, not severe.

Views V3 and V4

32. Views V3 and V4 are from the west-facing windows on Mr Liney’s first floor (see W3 and W4 above). The view takes in the local neighbourhood to the west: a street, dwellings, and the sky above. The trees partially obstruct the view of the street and nearby dwellings, but the sky view above remains. The obstruction is not severe.

33. When the trees were taller, they may have severely obstructed this view. However the Court is required to consider matters at s 14F of the Trees Act, including:

…

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

…

34. Views V3 and V4 are limited views of the local neighbourhood to the west. Even standing in the kitchen near window W4 (V4), the northern view through window W1 can be enjoyed. That northern view is the dwelling’s principal and best view. Therefore, considering the remaining view, I would not make any orders to interfere with the trees even if they severely obstructed the western view from the kitchen and living room.

Conclusion

35. Trees that form hedges on the Friends’ property do not severely obstruct sunlight to most of Mr Liney’s windows, nor do they severely obstruct most views from his dwelling. Even where any obstruction might be considered severe, for reasons given above I would not make any orders to interfere with the trees.

Orders

36. The Court orders:

37. The application is refused.

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

D Galwey

Acting Commissioner of the Court

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