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[2025] NSWLEC 1893
General information, not legal advice.
Land and Environment Court (NSW)
2025-11-18
Galwey AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McIver v Oakdale Investments Pty Ltd; Hannan v Oakdale Investments Pty Ltd [2025] NSWLEC 1893
Hearing dates: 18 November 2025
Date of orders: 18 November 2025
Decision date: 18 November 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision: 2025/371118 McIver v Oakdale Investments Pty Ltd
The Court orders:
(1) The application is granted.
(2) The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 66 cypress trees in the southern and western sections of the respondent’s cypress hedge to within 100 mm of ground level within 21 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) The respondent is to plant 5 trees on their property within 6 months of the date of these orders.
(4) The exhibits are retained.
2025/373872 Hannan v Oakdale Investments Pty Ltd
The Court orders:
(1) The application is granted.
(2) The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 39 cypress trees in the eastern section of the respondent’s cypress hedge to within 100 mm of ground level within 21 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) The respondent is to plant 5 trees on their property within 6 months of the date of these orders.
(4) The exhibits are retained.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — two Pt 2A applications — neighbouring cypress hedge — obstruction of sunlight — whether the obstruction is severe — consent orders — orders for removing 105 trees
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 14A, 14B, 14D, 14E, 14F
Cases Cited: Breen v Caronna [2008] NSWLEC 293
Hennessy v Unsworth [2023] NSWLEC 1773
Texts Cited: Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work
Category: Principal judgment
Parties: 2025/371118 McIver v Oakdale Investments Pty Ltd
Amy McIver (Applicant)
Oakdale Investments Pty Ltd (Respondent)
2025/373872 Hannan v Oakdale Investments Pty Ltd
Mike Hannan (Applicant)
Oakdale Investments Pty Ltd (Respondent)
Representation: Counsel:
2025/371118 McIver v Oakdale Investments Pty Ltd
A McIver (Self-represented) (Applicant)
P Sergi (Agent) (Respondent)
2025/373872 Hannan v Oakdale Investments Pty Ltd
M Hannan (Self-represented) (Applicant)
P Sergi (Agent) (Respondent)
File Number(s): 2025/371118; 2025/373872
Publication restriction: Nil
COMMISSIONER**:** The Bundanoon property belonging to Oakdale Investments Pty Ltd (the respondent) contains a dwelling and, behind that, a large back yard with a hedge of 109 cypress trees (the trees) around its three sides. Two of the respondent’s neighbours have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders to remedy and prevent a severe obstruction of sunlight caused by the trees.
Amy McIver (the applicant in 2025/371118, the ‘McIver proceedings’) owns and lives at the adjoining property south of the respondent’s property. Ms McIver applied to the Court seeking orders for the respondent to prune and maintain the 28 trees along the respondent’s southern boundary to a height of 3 metres.
Mike Hannan (the applicant in 2025/373872, the ‘Hannan proceedings’) owns and lives at the adjoining property east of the respondent’s property. Mr Hannan applied to the Court seeking orders for the respondent to prune and maintain the 40 trees along the respondent’s eastern boundary to a height of 3 metres.
Before the final hearing in both proceedings, the applicants and the respondent agreed on and proposed orders (the consent orders), which they filed with the Court. The parties had agreed to remove all trees in the hedge along the common boundaries between the respondent’s property and both the applicants’ properties.
Before making those consent orders, the Court must find that they are orders the Court can make, and would make, in the circumstances: see Breen v Caronna [2008] NSWLEC 293 at [14], [15]. Therefore, both matters proceeded to a combined hearing held onsite. The applicants in both matters were self-represented. The Court granted leave for Mr Pasquale Sergi, a director of Oakdale Investments Pty Ltd, to represent the respondent as agent. Ms Mary Stanger, who is possibly about to purchase the respondent’s property, attended as an interested observer. I bring my own arboricultural expertise and experience to this decision.
At the onsite hearing, the parties clarified that they agreed to removing all 105 trees in the hedge.
The trees are planted in three straight and continuous lines along the three boundaries surrounding the respondent’s back yard. The trees are all of the one species; they are planted at regular and close spacings; and they form a dense and continuous screen of foliage along the three boundaries. The trees are clearly planted so as to form a hedge and they are more than 2.5 metres tall, so they are trees to which Pt 2A of the Trees Act applies: s 14A of the Trees Act. For the purposes of this decision, I regard them as one hedge with three sections: the eastern, southern and western sections.
Both applications have been made pursuant to s 14B of the Trees Act. The trees are on land adjoining the applicants’ properties. The consent orders are orders the Court can make at s 14D of the Trees Act.
The Court must not make an order in each of these proceedings unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 14E(1) of the Trees Act.
The Court must not make an order in each of these proceedings unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of the applicant’s dwelling (s 14E(2)(a)(i) of the Trees Act) and that the applicant’s interests outweigh reasons to avoid interfering with the trees (s 14E(2)(b) of the Trees Act).
I have considered the matters at s 14F of the Trees Act in both proceedings.
The trees are Leighton Green cypress (Cupressus × leylandii [syn. × Hesperotropsis leylandii] ‘Leighton Green’). The trees are close to the common boundary. They are 15–17 metres tall and their foliage forms a dense screen that reaches past the boundary into each applicant’s property. Being evergreen, their sunlight obstruction persists throughout the year.
Removing more than 10 trees from a property would ordinarily require a development application to Wingecarribee Shire Council (Council). The applicants have each served a copy of their application on Council, and Council has made no submissions. A development consent might include conditions for replanting so some replanting will be ordered here, although the number of trees to be replanted will be significantly fewer than the number to be removed, in line with the size of the respondent’s land and its available space. Pursuant to s 6(3) of the Trees Act, the respondent will not require Council’s consent to carry out the orders.
The trees provide shading and cooling, screening for privacy, and some habitat value. They contribute to the amenity of the respondent’s property, although they also have some negative impacts due to overshadowing and competing with other plants.
The trees would not respond well to heavy pruning, so the hedge could not now be pruned and maintained at the significantly shorter height that would restore the applicants’ access to sunlight.
Despite the trees’ benefits, the severity and nature of the sunlight obstruction is such that the applicant’s interests in each of these proceedings outweigh any reasons to retain the trees: s 14E(2)(b) of the Trees Act.
Trees in the hedge’s western section do not severely obstruct sunlight to either applicant’s dwelling. However, the Court has made orders for all trees within a hedge when only some of the trees severely obstruct sunlight or views: for example, see Hennessy v Unsworth [2023] NSWLEC 1773 at [50]. The appropriateness of doing so depends on the circumstances of the case. Here, the parties agree that all trees should be removed and doing so will resolve all issues in this dispute.
For the reasons set out above, orders will be made for the respondent to remove all 105 trees in the hedge (66 trees in the McIver proceedings and 39 trees in the Hannan proceedings) and to replant 10 trees on their property (5 trees in each of the proceedings). For clarity, the tree at the respondent’s south-eastern corner was included in both applications, but within the orders it is included within the 66 trees ordered for removal in the McIver application, leaving only 39 trees for removal in the Hannan application.
The Court orders:
The application is granted.
The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 66 cypress trees in the southern and western sections of the respondent’s cypress hedge to within 100 mm of ground level within 21 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The respondent is to plant 5 trees on their property within 6 months of the date of these orders.
The exhibits are retained.
The Court orders:
The application is granted.
The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 39 cypress trees in the eastern section of the respondent’s cypress hedge to within 100 mm of ground level within 21 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
The respondent is to plant 5 trees on their property within 6 months of the date of these orders.
The exhibits are retained.
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