Miller v Watkins

Judgment

1. COMMISSIONER: Ms Miller (the ‘Applicant’) applied to the Court, pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the ‘Trees Act’), seeking orders for the Respondents to prune ten trees located at the Respondent’s rear boundary of 60 Beverly Street Merimbula. The Applicant owns 58 Beverly Street Merimbula, and shares a side boundary with the Respondent’s rear boundary.

2. The Applicant submits that the trees form a hedge and severely obstruct sunlight reaching her property, in particular including the rear living room, rear deck and side access area.

3. Ms Watkins (the Respondent) enjoys the privacy, amenity and biodiversity benefits the trees provide and seeks to maintain the trees in their current state. The trees range in species and size but are generally between 3 and 6 metres in height.

4. The Applicant is also concerned about the damage the trees have caused to the timber fence on the shared property boundary and that the fence is dilapidated and requires replacement.

5. No expert reports were submitted, and I rely on my observations made during the hearing.

6. The Applicant submits the shade and height of the trees act as a hedge located on neighbouring land. This must be considered under Part 2A of The Act.

7. The trees are planted along the shared property boundary, however they range in species, height, age, condition, and pruning history. There has been no evidence adduced to satisfy me that the trees have been planted so as to form a hedge (s 14A(1)(a)). The jurisdictional test required has not been satisfied and the Court's power under s 9 of the Act has not been engaged.

8. The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height. Although the jurisdictional test in [7] have not been satisfied, if I am incorrect and the trees were planted and act as a hedge, the issues to be determined would then have been as follows.

9. Is there a severe obstruction of sunlight caused by the trees?

10. If so, does the Applicant’s desire for direct sunlight outweigh the reasons not to interfere with the trees? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

11. An order must not be made unless the trees are severely obstructing sunlight to a window of a dwelling situated on the Applicant’s land, and the severity and nature of the obstruction is such that the Applicant’s interest in having the trees pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees.

12. The following addresses matters that must be considered in determining whether orders are appropriate.

13. The trees are located to the north of the Applicants property and, I observed during the onsite hearing, do cast shade on the rear deck, rear living room during some parts of the day.

14. Some of the trees were planted on the Respondent’s property before the Applicant had purchased the property at 58 Beverly Street Merimbula. Some of the trees are self-sewn after the Applicant had purchased the property.

15. The Respondent submitted that the trees were planted and/or allowed to grow as a part of a planned landscape design to act as a privacy screen and for the overall amenity and biodiversity benefits, and that pruning or removing the trees would diminish these attributes.

16. During the onsite hearing I observed the position of the sun relative to the dwelling and Applicant’s rear yard and resultant shade patterns and concluded that the trees added to the loss of sunshine by approximately one hour of morning sun and two hours of afternoon sun during winter, and less than this during other seasons due to the higher position of the sun during those periods. During the onsite hearing at around midday I observed shade was cast onto approximately 50% of the rear yard. Dappled shade was cast into the rear living room inside the dwelling. Due to the low angle of the sun, the eaves of the Applicant’s dwelling also cast shade into the rear living room.

Is there a severe obstruction of sunlight?

11. The application includes shade cast by the trees as observed during the onsite hearing. Based on the current height of the trees, I accept that there is some obstruction of sunlight to the Applicant’s rear yard, but I do not accept that it is severe. The trees do not cast shade that represents a complete loss of sun.

12. An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land if the obstruction occurs as a consequence of trees being situated on adjoining land.

13. I can see nothing at s 14B of the Trees Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Trees Act. However, the Court has relied upon background material such as the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009 (the ‘2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462). The 2009 Review concluded, in part, (on p 35) that the scope of Pt 2A should recognise the significant health, environmental and other benefits of urban vegetation, and that there could be a presumption in favour of maintaining the existence and health of urban trees.

14. As I am not satisfied that there is a severe obstruction of sunlight, orders will not be made and the application will be dismissed. However, even if I were to accept the Applicant's contention that the trees do cause a severe obstruction of sunlight, I would be required to consider the matters at s 14F before making any orders, including s 14F(l): "any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated”, (o) “the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost”, and (r) “the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed”.

15. To sufficiently restore sunlight, the trees would need to be pruned to the extent that it would likely result in the ultimate death of the trees where they would need to be removed. The amount of sunlight lost is limited to several hours through the day and not a complete loss of sunlight. The part of the property the subject of the application from which sunlight is obstructed is limited. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 14F.

Damage caused by trees

16. Under Part 2, because the Applicant has submitted that the trees have caused damage to the fence, I include a consideration of the jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

17. In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the Applicant's property or is likely to cause injury to any person.

Damage to the fence

18. The submission by the Applicant regarding the damage to the timber paling fence was limited to the fact that it was observed to be leaning and dilapidated. I agree with the observation that the fence is obviously dilapidated and requires replacement.

19. The Applicant’s submission lacked detail and provided no genuine evidence attributing the dilapidation of the fence solely to the trees. No other submissions were made regarding the damage to the fence. No evidence has been adduced that clearly attributes the growth of the trees to dilapidation of the fence, therefore no orders for compensation for repairs will be made.

20. Evidence has not been adduced to satisfy me that the trees have caused, or are likely in the near future to cause, damage to the Applicant’s property, nor are they likely to cause injury to any person.

Contribution of trees to privacy and landscaping

21. Even if the jurisdictional tests in s 10(2) were met, I find that the contribution of the trees to privacy and landscaping in the rear yard of the Respondent’s rear yard outweighs the removal of the trees. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 12(b3).

Conclusion

22. The trees were not planted so as to form a hedge, nor regularly maintained as a hedge. The duration of obstruction of sunlight is limited, therefore no orders for tree pruning or removal will be made.

23. No evidence has been adduced that clearly attributes the trees to any observable damage to the timber fence therefore, no orders will be made.

24. As a result of the above, the application to prune the trees is dismissed.

25. During the onsite hearing, an order for compensation was requested by the Applicant to recover the shared expense of replacement of the dilapidated timber fence. The trees were not found to be the cause of the dilapidation of the fence, and no orders will be made. However, there is nothing preventing the parties from agreeing to arrange for the replacement of the dilapidated timber fence and the sharing of this cost in the conventional 50:50 proportion.

Orders

26. The Orders of the Court are:

27. The application to prune the trees is dismissed.

28. The Applicant’s application for compensation to repair the damaged fence is dismissed.

………………………..

P Nichols

Acting Commissioner of the Court

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Amendments

26 August 2025

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule"), the Respondent has requested that Order 2 be amended to State "Applicant's" instead of "Respondent's".

26 August 2025

"Respondent" is replaced by "Applicant" at [25].