Nguyen v M Sayour; Nguyen v F Sayour

Before: Galwey AC

Decision: 2025/282982 Nguyen v M Sayour
The Court orders:
(1) The application is granted to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the blue gum within 60 days of the date of these orders, to:
(a) reduce overextended branches above the applicant’s property;
(b) provide 2 metres of clearance between the applicant’s dwelling and all parts of the tree; and
(c) remove all dead branches greater than 25 mm in diameter above the applicant’s property and within 2 metres of the parties’ common boundary.
(3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. No more than 15% of the tree’s live crown is to be removed.
(4) On at least two days notice from the respondent, the applicant is to allow access to her property during reasonable hours of the day for the purpose of completing the works in Order (2).
(5) The exhibits are returned, other than Exhibit A.
2025/282984 Nguyen v F Sayour
The Court orders:
(1) The Pt 2 application is granted to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the red gum within 60 days of the date of these orders, to:
(a) reduce overextended branches above the applicant’s property;
(b) provide 2 metres of clearance between the applicant’s dwelling and all parts of the tree; and
(c) remove all dead branches greater than 25 mm in diameter above the applicant’s property and within 2 metres of the parties’ common boundary.
(3) The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. No more than 15% of the tree’s live crown is to be removed.
(4) On at least two days notice from the respondent, the applicant is to allow access to her property during reasonable hours of the day for the purpose of completing the works in Order (2).
(5) The Pt 2A application is refused.
(6) The exhibits are returned, other than Exhibit A.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — applicant makes two applications concerning trees on two adjoining properties — neighbouring properties owned by different members of one family — Pt 2 and Pt 2A applications — whether two neighbouring trees are likely to cause damage or injury — whether the applicant should bear the cost of any pruning works — whether trees are severely obstructing a view — orders for pruning two trees, one in each Pt 2 application — Pt 2A application refused

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 8, 9, 10, 12, 14A, 14B, 14C,14D, 14E, 14F

Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Chan v So [2025] NSWLEC 1723
Yang v Scerri [2007] NSWLEC 592

Texts Cited: Australian Standard 4373:2007, Pruning of amenity trees
Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work

Category: Principal judgment

Parties: 2025/282982 Nguyen v M Sayour
Thuy Huong Nguyen (Applicant)
Moustafa Sayour (Respondent)
2025/282984 Nguyen v F Sayour
Thuy Huong Nguyen (Applicant)
Fatima Sayour (Respondent)

Representation: 2025/282982 Nguyen v M Sayour
Counsel:
T Nguyen (Self-represented) (Applicant)
K Ti (Solicitor) (Respondent)
Solicitors:
Adams & Partners Lawyers
2025/282984 Nguyen v F Sayour
Counsel:
T Nguyen (Self-represented) (Applicant)
K Ti (Solicitor) (Respondent)
Solicitors:
Adams & Partners Lawyers

File Number(s): 2025/282982; 2025/282984

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Thuy Huong Nguyen (Dr Nguyen, ‘the applicant’ in both matters determined in this judgment) and her husband live at their residential property (‘No. 90A’) high on a south-facing slope at Kyle Bay, in Sydney’s south. No. 90A adjoins three properties belonging to members of one family, the Sayours.

2. To the southeast of No. 90A, a mature tree standing on a residential property (‘No. 92’) belonging to Moustafa Sayour (‘M Sayour’, ‘the respondent’ in 2025/282982) overhangs No. 90A. In the matter of 2025/282982 (‘the No. 92 proceedings’), Dr Nguyen has applied to the Court seeking orders for M Sayour to prune this tree’s branches close to her dwelling. For clarity, documents filed by both the applicant and the respondent refer to No. 92 as No. 92B, but the NSW Planning Portal shows this lot as No. 92, so I use that number in this judgment.

3. Directly south of No. 90A, a mature tree and a hedge grow on the residential property (‘No. 92A’) belonging to Fatima Sayour (‘F Sayour’, ‘the respondent’ in 2025/282984). The tree overhangs No. 90A. The hedge grows along No. 92A’s common boundary with an adjoining property to the west (‘No. 94’), adjacent to other hedges on No. 90A and No. 94. In the matter of 2025/282984 (‘the No. 92A proceedings’), Dr Nguyen has applied to the Court seeking orders for F Sayour to prune that tree’s branches close to her dwelling, to trim the hedge at No. 92A, and to allow access to No. 92A for Dr Nguyen’s gardener to trim other hedges.

4. Directly east of No. 90A is a third property (‘No. 90’), also belonging to members of the Sayour family, which is not a subject of Dr Nguyen’s applications. The three Sayour properties are occupied by family members; their backyards are not separated by fences.

5. For efficiency and practicality, the two matters were heard concurrently at the onsite hearing on 9 December 2025. For the same reasons, the decisions in both matters are combined within this one judgment. Dr Nguyen was self-represented; Kenneth Ti, solicitor, represented both M Sayour and F Sayour, the respondents respectively in the two proceedings.

6. In the No. 92 proceedings, the Court relies on:

7. Dr Nguyen’s application (forms C and H, including photographs, in Exhibit A)

8. A tree permit assessment and determination from Georges River Council (Exhibit B)

9. An affidavit sworn by Yesmine Sayour (‘Y Sayour’), occupant of No. 92 and daughter of M Sayour, including attachments

10. A development application (DA) history for No. 90A (Exhibit 2).

11. In the No. 92A proceedings, the Court relies on:

12. Dr Nguyen’s application (forms C, G and H, including photographs, in Exhibit A)

13. A tree permit assessment and determination from Georges River Council, along with a further statement from Dr Nguyen (Exhibit B)

14. An affidavit sworn by Lamia Sayour (‘L Sayour’), occupant of No. 92A and daughter of F Sayour, including attachments.

Framework for these decisions

8. In each of the proceedings, Dr Nguyen has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders to prevent a tree on adjoining land causing damage to her property. Sections of the Trees Act relevant to both Pt 2 decisions include ss 7, 8, 9, 10 and 12.

9. Additionally, in the No. 92A proceedings, Dr Nguyen has applied to the Court pursuant to s 14B (Pt 2A) of the Trees Act seeking orders to prevent a severe obstruction of sunlight to, and views from, her dwelling, resulting from growth of a hedge on adjoining land. Sections of the Trees Act relevant to this decision are ss 14A to 14F.

Trees are on adjoining land

10. Within both Pt 2 and Pt 2A of the Trees Act, trees that are the subject of an application must be situated on land adjoining the applicant’s land: at ss 7 and 14B respectively. No. 90A shares a common boundary with each of No. 92 and 92A. Although the section of boundary shared with No. 92 is only short, it is sufficient for the properties to be adjoining. The subject trees are located within No. 92 and No. 92A. It is not disputed, and I find, that trees which are the subject of both proceedings are situated on land adjoining the applicant’s land.

The applicant has made a reasonable effort to reach agreement

11. Within both Pt 2 and Pt 2A of the Trees Act, the Court must not make an order 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: at ss 10(1) and 14E(1) respectively.

Applicant’s submissions

12. Dr Nguyen submitted that she made an effort to resolve the issues with her neighbours despite the hurdles they put in her way.

13. Dr Nguyen explained to Ms Zina Sayour (‘Z Sayour’), occupier of No. 90 and daughter of F Sayour, her concerns about the two trees and her need for access to No. 92A for the purpose of pruning hedges. She communicated with Ms Z Sayour because Ms L Sayour, the occupant of No. 92A, would not respond to her. Dr Nguyen wrote to the respondents on 12 July 2025 and attempted, unsuccessfully, to arrange discussions in-person, and explained the need for access to No. 92A. Dr Nguyen said that she was told by the occupants of No. 92 and No. 92A that any attempt to step on the respondents’ land would be seen as trespassing. Dr Nguyen submitted that she was told to only communicate with the respondents via their lawyer, so she complied with that direction.

14. When Dr Nguyen saw someone pruning an overhanging branch from the tree at No. 92, she interrupted the works as she was uncomfortable with the works proceeding without a permit. Dr Nguyen submitted that the respondents’ attempts to prune the tree demonstrated their knowledge of her concerns, despite their statements to the contrary.

15. Dr Nguyen applied to Georges River Council (Council) for approval to prune the two mature trees concerned, one each at No. 92 and No. 92A. Dr Nguyen submitted that the occupants of No. 92 and No. 92A told her she could prune the trees if she wished, but she did not see this as her responsibility as she does not own the trees.

16. Dr Nguyen’s gardener has pruned hedges at Dr Nguyen’s property and at No. 92A and No. 94. After she asked an occupant of No. 92A in February 2025 to contribute to the cost of hedge pruning, her request was refused, as was access to No. 92A for the purpose of pruning hedges. In May, she was granted limited access to No. 92A for some hedge pruning. Later, Dr Nguyen received a letter from the respondents’ lawyer denying any access to the respondents’ properties.

Respondents’ submissions

17. Mr Ti submitted for the respondents in both matters that Dr Nguyen has not made a reasonable effort to reach agreement to the extent required by ss 10(1)(a) and 14E(1)(a) of the Trees Act. Mr Ti said that Dr Nguyen might have communicated with Ms Z Sayour, but she did not communicate directly with the property owners, M Sayour and F Sayour.

18. Mr Ti described the breakdown in communications with Dr Nguyen following a heated interaction in February 2025 over which hedge was to be pruned. Mr Ti’s description of events aligns with Dr Nguyen’s: Dr Nguyen wrote to the respondents, the respondents engaged Mr Ti, Mr Ti wrote to Dr Nguyen that she was not to access the respondents’ properties nor prune their hedge, but she could prune overhanging branches of both subject trees according to the common law right of abatement.

19. Mr Ti submitted that Dr Nguyen did not explain the need for access to No. 92A for pruning hedges. He said that Dr Nguyen did not prune either of the subject trees after he explained via a letter of 18 July 2025 that she could prune overhanging branches. He said that the respondents arranged pruning of the tree at No. 92 but Dr Nguyen interrupted and prevented them doing the work. Mr Ti submitted that Dr Nguyen’s omission of obtaining an expert report on the trees is further evidence that she has not made a reasonable effort.

Findings

20. I am satisfied that Dr Nguyen has made a reasonable effort to reach agreement in her Pt 2 applications in both proceedings and in her Pt 2A application in the No. 92A proceedings.

21. Dr Nguyen’s letter of 12 July to Mr Ti’s office, first, set out her requests for tree pruning and for property access for hedge pruning and, second, explained her reasons for these requests. Mr Ti’s letter in reply made it clear that the respondents would not agree to any of Dr Nguyen’s requests. The respondents may have found Dr Nguyen’s requests unreasonable, but she clearly found them reasonable and took all reasonable steps to gain some agreement. On my experience, the nature of neighbourhood tree disputes is that neighbouring parties can look upon the one situation very differently. The test at ss 10(1)(a) and 14E(1)(a) is not whether the applicant’s request is reasonable, but whether the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

22. Further, I am satisfied that the timeframe for the hearing has allowed the applicant to give notice of the applications in accordance with ss 8 and 14C of the Trees Act. Therefore, nothing at ss 10(1) and 14E(1) of the Trees Act prevents the Court making orders in these applications.

Pt 2 applications: Whether the tree is likely to cause damage or injury

The No. 92 proceedings

Observations and evidence

23. The subject tree in No. 92’s backyard is a Sydney blue gum (Eucalyptus saligna) (‘the blue gum’) approximately 25 metres tall with a stem diameter of around 80 cm. It appears healthy, without major structural defects. Its crown spreads across the common boundary, with branches overhanging No. 90A, some less than one metre from parts of Dr Nguyen’s dwelling. Some branches are overextended, with weight held at their ends at a considerable distance from the tree’s stem. Dead branches are in the blue gum’s crown above her property.

24. Council’s tree permit assessment and determination of 24 June 2025 approved pruning works to the blue gum to reduce building encroachment, to reduce the weight of elongated branches, and to remove deadwood, with no more than 15% of live canopy to be removed and no branches greater than 150 mm in diameter to be removed.

The applicant’s submissions

25. Dr Nguyen wrote in her application (Form H in Exhibit A ) that the blue gum’s branches are almost touching her dwelling and that some large branches have fallen onto her property. Branches have not damaged her property, but she is concerned that more branches will fall and will damage the glass balustrade to her patio, planter boxes, and windows of her dwelling. Her application included photographs of fallen branches on her patio and balustrade. Dr Nguyen is also concerned that a falling branch will injure someone on her patio.

26. Dr Nguyen submitted that the tree has not been pruned during the seven years she has lived here. She believes it is the tree owner’s responsibility, not hers, to take action to prevent the tree causing damage.

The respondent’s submissions

27. Ms Y Sayour’s affidavit includes numerous paragraphs that are identical to, or almost identical to, paragraphs in Ms L Sayour’s affidavit in the No 92A proceedings. Rather than being her own words, Ms Y Sayour has copied sections of her sister’s affidavit. This seems the likely order, as Ms Y Sayour acknowledged reading her sister’s affidavit (at para 7), whereas Ms L Sayour did not.

28. Ms Y Sayour, via her affidavit, stated that the blue gum provides shade and contributes to the comfort of her backyard, especially during summer. She said it provides privacy and screening for her home. She said her family pays a considerable sum to maintain the gardens and landscaping of all three of their properties.

29. Ms Y Sayour disagreed that the blue gum is overgrown or unsafe. She disagreed that it poses a risk to Dr Nguyen’s property. Branches that Dr Nguyen wants pruned can only be accessed from within Dr Nguyen’s property. Given that Dr Nguyen has obtained Council’s approval to prune the blue gum, Ms Y Sayour does not understand why she has not done so. As a result, Ms Y Sayour submitted, any damage the blue gum may cause to Dr Nguyen’s property is a result of Dr Nguyen’s failure to take steps to prevent that damage. Mr Ti also made submissions to this point, saying that Dr Nguyen has not taken any action to prevent damage to her property; that it is her right to do so; and that she has been granted permission to do so.

30. In her affidavit, Ms Y Sayour proposed alternate orders that the applicant may prune overhanging branches of the blue gum at her expense and that the applicant pays the respondent’s costs of the proceedings.

31. Mr Ti produced the DA history for No. 90A (Exhibit 2) showing additions to the dwelling at No 90A since 2002. Mr Ti argued that the Court should consider the situation in light of the principle at [15] in Black v Johnson (No 2) [2007] NSWLEC 513 (‘Black’), which I copy here.

“…

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.”

32. Mr Ti posited that the blue gum is clearly more than 20 years old. Because the tree was already there when the No. 90A additions occurred, Mr Ti said the cost of pruning overhanging branches should lie with the applicant.

33. Mr Ti referred to Douglas AC’s discussion at [102] of Chan v So [2025] NSWLEC 1723 (‘Chan’), relying on that to demonstrate that the respondent here is not obliged to prune overhanging branches. I copy that paragraph here:

“[102] The applicants were annoyed and frustrated by the First and Second respondents’ refusal to address their requests to prune or remove T1, while allegedly removing trees on their own property. However, there is no law per se or Council requirement for a tree owner to pay for or otherwise take responsibility for branches overhanging neighbouring properties or to offer “assistance in cleaning up the mess caused by T1 on (the applicants’) property” (Exhibit B, p 46).”

Findings

34. Branches that have fallen from the blue gum have not damaged Dr Nguyen’s property. The pattern of branches falling from the blue gum – their number and size – is likely to continue. Branches over Dr Nguyen’s property are highly likely to fall within the next 12 months, a period I regard as representing ‘the near future’ as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592. Those branches are likely to damage elements of her property such as those she raised in her application: the patio’s balustrade, planter boxes, and windows of her dwelling. The patio is an area used by her family, so a falling branch may cause injury.

35. Branches that are likely to fall include dead branches and overextended branches over Dr Nguyen’s property. Some overextended branches reach far across the boundary, with foliage within one metre of her dwelling. Within the near future, during strong winds, these branches are likely to make contact with her dwelling, which would cause damage, minor at first, such as scratching of surfaces.

36. I am satisfied that the blue gum is likely to cause damage to Dr Nguyen’s property in the near future. Therefore, nothing at s 10(2) of the Trees Act prevents the Court making orders in this Pt 2 application.

37. I have considered the matters at s 12 of the Trees Act where they are relevant to the No. 92 proceedings. The blue gum is close to the common boundary shared by the applicant and the respondent; its stem is close to the respondent’s dwelling; its branches to the northwest are close to the applicant’s dwelling.

38. Interference with the blue gum would ordinarily require Council’s consent. Dr Nguyen applied for, and received, Council’s approval to prune the blue gum as described above at [24].

39. Pruning the blue gum to minimise the likelihood of branches falling and damaging Dr Nguyen’s property, and to reduce building encroachment, could be done without adverse impacts to the tree.

40. The blue gum contributes to the amenity of the respondent’s land as well as surrounding properties, and to the broader public amenity. It provides shade and cooling. It is a native tree that attracts and provides habitat for fauna. It contributes to privacy for occupants at No. 92. These benefits would not be lost if the tree were pruned to prevent damage to Dr Nguyen’s property.

41. For these reasons, I am satisfied that orders should be made for pruning the blue gum. As to who should pay for the pruning works, I see no reason in these proceedings to diverge from the norm: the tree’s owner will pay for the works. The applicant has not contributed to the risk of damage. She has brought the issues to the respondent’s attention and has reasonably expected the tree’s owner to take action to prevent damage.

42. The tree was present when additions were made to the applicant’s dwelling since 2000. The principle in Black (see [31] above) invites the decision-maker, when determining who should pay for works to remedy or prevent damage, to consider factors such as: whether or not the tree was self-sown or was planted; the appropriateness or otherwise of the type of tree planted and the suitability of its location; whether the choice of location for the applicant’s structure was unnecessary or avoidable; or, if the tree might have limited the site’s development potential, whether that would have been an unreasonable constraint on that potential. I am not sure if the blue gum was planted or self-sown, but would guess that it was planted, in which case its species is appropriate and its location is suitable. The applicant’s dwelling is located sensibly on the property. The dwelling itself is set back from the common boundary and from the tree, with the patio located beneath the tree’s crown. Large trees also overhang the applicant’s property from adjoining properties to the north. The applicant’s dwelling is large, its footprint taking up most of the lot, but that only seems to conform to the trend of dwelling sizes recently. Dr Nguyen and previous owners of her property have not unreasonably contributed to the risk of property damage from the blue gum.

43. Following his words at [102] of Chan (see [33] above), Douglas AC continued at [103] with:

“[103] Under the Trees Act, orders may be made when branches are proven to cause damage or present risk of injury, but no remedy is available for mere encroachment of branches over neighbouring land even when foliage, fruit or flowers fall from the tree.”

44. That is, mere encroachment of branches over property does not give the Court a reason to make orders, but the Court may make orders at s 9 of the Trees Act to prevent damage, if satisfied at s 10(2) that the tree concerned is likely to cause damage to the applicant’s property in the near future, as I am here. In Chan, Douglas AC went on to make an order for the respondents to remove T1 (the subject of discussion at [102] of Chan) at their expense. In the current proceedings, I will make orders for the respondent to prune the blue gum at his expense.

The No. 92A proceedings

Observations and evidence

45. The subject tree in No. 92A’s backyard is a Sydney red gum (A**ngophora costata) (‘the red gum’), otherwise known as a smooth-barked apple. It is almost 25 metres tall with a stem diameter of around 60 cm. It appears healthy, without major structural defects. Its crown spreads across the common boundary, with branches overhanging No. 90A. Foliage on one branch is approximately 30 centimetres from a steel fireplace flue emerging from Dr Nguyen’s dwelling. Other branches are within one metre of her dwelling. Some branches Over Dr Nguyen’s property are overextended. Dead branches are also held in the red gum’s crown above her property.

46. Council’s tree permit assessment and determination of 24 June 2025 approved the same pruning works to the red gum as approved for the blue gum (see [24] above), as well as pruning to achieve canopy uplift (pruning or removing the lowest branches).

The applicant’s submissions

47. Dr Nguyen’s submissions regarding the red gum were similar to her submissions for the blue gum in the No. 92 proceedings (see [25], [26] above). In addition, Dr Nguyen pointed out the proximity of one branch to her fireplace flue and said she was unable to use her gas fireplace because it might set alight the branch.

The respondent’s submissions

48. Ms L Sayour, via her affidavit, responded to Dr Nguyen’s Pt 2 application in the No. 92A proceedings along the same lines as her sister’s responses in the No. 92 proceedings (see [27]-[30] above).

49. Likewise, Mr Ti’s submissions regarding the red gum in these proceedings echoed those regarding the blue gum (see [31]-[33] above).

Findings

50. The red gum’s crown includes dead branches and overextended branches above Dr Nguyen’s property. Such branches have fallen periodically but have not yet caused damage. However, branches falling in the near future are likely to cause damage to Dr Nguyen’s property, including the patio’s balustrade, planter boxes, and windows of her dwelling.

51. The red gum’s branch with foliage close to Dr Nguyen’s fireplace flue is likely to contact and scratch the flue during strong winds in the near future. This amounts to damage, minor though that might be at first.

52. I am satisfied that the red gum is likely to cause damage to Dr Nguyen’s property in the near future. Therefore, nothing at s 10(2) of the Trees Act prevents the Court making orders in this Pt 2 application.

53. I have considered the matters at s 12 of the Trees Act that are relevant to the No. 92A proceedings. The tree and its situation and benefits are similar to those for the blue gum in the No. 90A proceedings.

54. The red gum is close to the common boundary shared by the applicant and the respondent; its branches to the north overhang the boundary and are close to the applicant’s dwelling.

55. Interference with the red gum would ordinarily require Council’s consent. Dr Nguyen applied for, and received, Council’s approval to prune the red gum as described above at [46].

56. Pruning the red gum to minimise the likelihood of branches falling and damaging Dr Nguyen’s property, and to reduce building encroachment, could be done without adversely impacting the tree.

57. The red gum contributes to the amenity of the respondent’s land as well as surrounding properties, and more broadly to public amenity. It provides shade and cooling. It is a native tree that attracts and provides habitat for fauna. It contributes to privacy for occupants at No. 92A. These benefits would not be lost if the tree were pruned to prevent damage to Dr Nguyen’s property.

58. Having considered these matters, I am satisfied that orders should be made for pruning the red gum. For the same reasons as I set for the blue gum (see [41]-[44] above), the respondent will be ordered to pay for pruning works to the red gum.

The Pt 2A application in the No. 92A proceedings

Observations and evidence

59. Dr Nguyen’s Pt 2A application in the No. 92A proceedings concerns a Murraya (Murraya paniculata) hedge (‘the No. 92A hedge’) running north-to-south along the respondent’s western boundary. The No. 92A hedge is south of Dr Nguyen’s dwelling.

The applicant’s submissions

60. Dr Nguyen submitted that her gardener used to prune the No. 92A hedge to gain access to the hedge at No. 94, which runs north-south alongside and to the west of the No. 92A hedge. Dr Nguyen wrote in her application (Question 4, Form G in Exhibit A) that the hedge obstructs sunlight to two of her windows, for 9 hours (W1) and 5 hours (W2) each day.

61. Dr Nguyen explained that her gardener cannot prune her own hedge from within her property, so she requires access to No. 92A to prune it. If she is not granted this access, her own hedge will grow to obstruct sunlight to her windows.

62. Dr Nguyen is also concerned about her loss of a view. She explained during the site inspection that trees in the No. 92A hedge do not directly obstruct a view from her dwelling. But if they are not pruned, her gardener cannot access the hedge at No. 94, to prune it. The trees in that hedge will obstruct her view.

The respondent’s submissions

63. Ms L Sayour submitted, via her affidavit, that the No. 92A hedge is maintained regularly at a height of around 2.8 metres. She submitted that trees in this hedge do not obstruct sunlight to, or a view from, Dr Nguyen’s dwelling.

64. Ms L Sayour said her family should not be responsible for pruning Dr Nguyen’s hedge, nor for allowing access for Dr Nguyen’s gardener to prune Dr Nguyen’s hedge.

65. Mr Ti submitted for the respondent that Pt 2A of the Trees Act does not apply to the No. 92A hedge as it is not severely obstructing sunlight or a view.

Findings

66. The jurisdiction of Pt 2A of the Trees Act is limited at s 14E(2)(a) (with my emphasis in bold):

14E Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that—

(a**) the trees concerned**—

(i**) are severely obstructing sunlight** to a window of a dwelling situated on the applicant’s land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, and

(b) …

67. The ‘trees concerned’ are the trees that are on adjoining land and are the subject of the application: the trees in the No. 92A hedge. Those trees are maintained regularly in such a way that they do not obstruct sunlight to a window of, nor a view from, Dr Nguyen’s dwelling. Accordingly, the Court must not make an order in this Pt 2A application. To gain access to No. 92A for the purpose of pruning other hedges, Dr Nguyen will need to rely on the respondent’s goodwill or find an alternative solution.

Conclusions

68. As a result of the foregoing, orders will be made for pruning the blue gum in the No. 92 proceedings and the red gum in the No. 92A proceedings. The respective tree owners will pay for the works. With consideration of the current holiday period, the respondents will each be allowed 60 days to carry out the pruning works. Pursuant to s 6(3) of the Trees Act, the respondents will not require Council’s consent for tree works ordered in these proceedings. The Pt 2A application in the No. 92A proceedings will be refused.

Orders

2025/282982 Nguyen v M Sayour (the No. 92 proceedings)

69. The Court orders:

70. The application is granted to the extent of the following orders.

71. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the blue gum within 60 days of the date of these orders, to:

(a) reduce overextended branches above the applicant’s property; (b) provide 2 metres of clearance between the applicant’s dwelling and all parts of the tree; and (c) remove all dead branches greater than 25 mm in diameter above the applicant’s property and within 2 metres of the parties’ common boundary.

3. The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. No more than 15% of the tree’s live crown is to be removed.
4. On at least two days notice from the respondent, the applicant is to allow access to her property during reasonable hours of the day for the purpose of completing the works in Order (2).
5. The exhibits are returned, other than Exhibit A.

2025/282984 Nguyen v F Sayour (the No. 92A proceedings)

70. The Court orders:

71. The Pt 2 application is granted to the extent of the following orders.

72. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the red gum within 60 days of the date of these orders, to:

(a) reduce overextended branches above the applicant’s property; (b) provide 2 metres of clearance between the applicant’s dwelling and all parts of the tree; and (c) remove all dead branches greater than 25 mm in diameter above the applicant’s property and within 2 metres of the parties’ common boundary.

3. The works in Order (2) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. No more than 15% of the tree’s live crown is to be removed.
4. On at least two days notice from the respondent, the applicant is to allow access to her property during reasonable hours of the day for the purpose of completing the works in Order (2).
5. The Pt 2A application is refused.
6. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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