Solomon v Hatton

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedge – obstruction of sunlight and views – whether the obstruction is severe – orders for tree removal – orders for planting and maintaining replacement trees

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 14A, 14B, 14D, 14E, 14F

Texts Cited: Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment

Parties: Rebecca Solomon (Applicant)
Lorraine Hatton (First Respondent)
John Hatton (Second Respondent)

Representation: Counsel:
R Solomon (Self-represented) (Applicant)
L Hatton (Self-represented) (First Respondent)
J Hatton (Self-represented) (Second Respondent)

File Number(s): 2025/192181

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** A row of 14 lilly pilly trees grows on the Hattons’ (the respondents’) Bulli property along their rear boundary, being the common boundary they share with their neighbour Ms Solomon (the applicant). Ms Solomon has applied to the Court seeking orders for the trees to be maintained at a height of 3 metres to restore her access to sunlight and views. After receiving notice of Ms Solomon’s application, the Hattons applied for and gained consent from Wollongong City Council (Council) to remove the trees with a condition that they carry out replacement planting. They have not carried out these works but intend to do so.

2. The final hearing in these proceedings took place onsite, allowing me to observe the trees and both properties. The parties were self-represented.

Framework for this decision

3. Ms Solomon applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The trees are on land adjoining the applicant’s land. The orders she 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(1) 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.

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

4. Fourteen lilly pilly trees are planted in a straight row parallel with the Hattons’ rear boundary. Their foliage forms a continuous canopy along the boundary. They were planted to form a screen. They are up to 9 metres tall. Part 2A of the Trees Act applies to these trees.

Reasonable effort to reach agreement

5. Initial discussions between the parties concerning the trees did not go well. In March 2025, Ms Solomon wrote to the Hattons outlining her concerns and her request for pruning. I am satisfied that Ms Solomon has made a reasonable effort to reach agreement with the Hattons and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the trees are severely obstructing sunlight or a view

6. Ms Solomon took the Court to her kitchen and rear deck. The trees are only a few metres from her east-facing kitchen window and would obstruct direct morning sunlight. The trees obstruct the outlook to the east, including the landscape view over the Hattons’ roof and the sky above. Other trees on the neighbouring property north of the Hattons’ property also obstruct sunlight and views, but the obstruction caused by the Hattons’ lilly pillies is sufficient to be considered severe. Likewise, the eastern outlook from Ms Solomon’s rear deck is severely obstructed by the lilly pillies. Relying on the evidence filed with the Court, I am also satisfied that the trees were significantly shorter when Ms Solomon purchased her property in 2013, so she has lost access to sunlight and views that were available to her at that time.

Tree removal is in the interests of both parties

7. Because foliage is mostly at the trees’ tops, above sightlines between the two properties, the trees no longer provide the privacy screening they once did. The interests of both parties are best served by the removal of the lilly pillies followed by their replacement with a more effective hedge.

Other relevant matters

8. Council has provided consent to remove the trees, but this does not require the respondents to carry out the permitted works. Council’s condition for replanting does not specify where on the Hattons’ property the replacement trees must be planted, nor does it specify any maintenance requirements. Court orders can ensure the trees do not grow to severely obstruct sunlight or views again. Court orders will also remove the need for the Hattons to gain consent each time the trees are to be pruned: s 6(3) of the Trees Act.

9. When maintaining the replacement trees at a specified height, the Hattons can also prune the side of the hedge facing them. Branches will also grow to overhang Ms Solomon’s property. Pruning those would require access to her property. Considering the circumstances, it would be best for Ms Solomon to undertake maintenance of her side of the hedge.

Orders

10. The Court orders:

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

12. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove all lilly pillies forming the hedge along their rear boundary within 30 days of the date of these orders.

13. Within 60 days of the date of these orders, the respondents are to plant a replacement hedge along their rear boundary consisting of at least 10 native trees that have the capacity to reach a height of 5 metres at maturity.

14. Once any tree in the replacement hedge reaches 5 metres in height, during September each year the respondents are to prune, or are to engage and pay for a suitably experienced contractor to prune:

(a) the hedge to a height of no more than 4.5 metres measured from the base of each tree; and (b) their side of the hedge as they see fit.

5. In September each year the applicant, or a suitably experienced contractor engaged and paid by the applicant, is to prune her side of the hedge back to the boundary line only, should she wish to do so.
6. The works in Orders (2), (4) and (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
7. The exhibits are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

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