The Owners – Strata Plan No 53786 v The Residents Development Pty Ltd

Decision: The Court orders:
(1) The application is granted only to the extent of the following orders.
(2) Twice each year in May and November, beginning November 2025, the respondent is to prune, or engage a suitably experienced contractor to prune, the Murraya hedge adjacent to the common boundary shared with the applicants, to the height of the top of the boundary fence.
(3) The exhibits are returned, other than Exhibit A.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring trees – whether the trees are planted so as to form a hedge – obstruction of views – whether the obstruction is severe – orders for pruning

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited: Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012

Category: Principal judgment

Parties: The Owners – Strata Plan No 53786 (Applicant)
The Residents Development Pty Ltd (Respondent)

Representation: Counsel:
Anthony Rae (Agent) (Applicant)
No appearance (Respondent)

File Number(s): 2025/215090

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** The following photograph (from Exhibit B) best demonstrates what lies at the nub of the application in these tree proceedings: the eastward view once enjoyed from Apartment 3 at 18 Barnhill Road, Terrigal.

2. The photograph shows Terrigal point. A broad ocean view continues out of the frame, further northward to the left.

3. The Owners – Strata Plan No 53786 (the applicant) have applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for their neighbour to prune trees that have grown to obstruct sunlight to windows of, and views from, Apartment 3. The adjoining property on which the trees grow is owned by The Residents Development Pty Ltd (the respondent).

4. The afternoon before the onsite hearing, Mr Moses, agent for the respondent, filed a Notice of Motion asking that the hearing be vacated because he is overseas. Mr Moses knew of the scheduled hearing for more than two months, and left his request to the last minute. It would be unfair on the applicants, who have already attended several directions hearings, to reschedule the hearing. The Notice of Motion was refused and the onsite hearing proceed ex parte. Anthony Rae represented the applicant.

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

5. The applicant engaged Russell Kingdom, arborist at Advanced Treescape Consulting, to assess the neighbouring trees and to prepare a report. Mr Kingdom listed the trees as follows:

21 Fig, 10 metres tall

22 Angel’s trumpet, 8 m

23 Buckinghamia, 8 m

24 Pittosporum, 10 m

25 Buckinghamia, 13 m

26 Magnolia, 8 m

27 Turpentine, 14 m

28 Michelia, 10 m

A Murraya hedge, 3 m tall

6. The jurisdiction of Pt 2A of the Trees Act is limited at s 14A:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that—

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

7. The Trees Act provides no definition of hedge. The Court has considered different plantings that might, or might not, constitute a hedge. In Wisdom v Payn [2011] NSWLEC 1012 (Wisdom) at [45], the Court found:

[45] We reject this proposition. We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.

8. In Johnson v Angus [2012] NSWLEC 192 (Johnson), Preston CJ found at [41]:

[41] But the criterion of sufficient proximity does not exhaust the relevant criteria to be considered in determining whether trees are planted so as to form a hedge. Section 14A(1)(a), construed in its own terms and in the context of Part 2A, does not so circumscribe the criteria that may be considered in determining whether the trees are planted so as to form a hedge. Other criteria are relevant, including the species of trees planted; whether the trees are all of one species or different species and, if different species, the similarity or dissimilarity and compatibility or incompatibility of the different species in terms of morphology (the form and structure of the trees), function and growth of the trees; the planting arrangement of the trees, such as whether the trees are planted in a linear, curvilinear, or another spatial relationship conducive to the trees forming a hedge.

9. The planting arrangement of the trees in this application has no regularity to it, either in the spacings between trees, or in the use of a single or similar species. Several trees, and particularly the turpentine, are not suited to being maintained as a hedge. The planting arrangement of all trees other than the Murraya is not one that, in the words of Wisdom, “would be perceived to be a hedge.”

10. Preston CJ also found in Johnson, at [28], that s 14A of the Trees Act requires the trees to not only form a hedge in the present, but also to have been planted with the intention of forming a hedge.

[28] In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present.

11. Apart from the row of Murraya along the boundary, nothing indicates that other trees were planted with the intention of forming a hedge.

12. For these reasons, I find that most of the trees here do not form a hedge. They may have been planted at different times. Eight different species are present, all with different growth habits. They are not planted in a row or at regular spacings. To me, only the Murraya is planted so as to form a hedge.

13. As a result, Pt 2A of the Trees Act applies only to the Murraya. Orders cannot be made for the other trees.

Whether trees severely obstruct sunlight or a view

14. The finding that Pt 2A of the Trees Act applies only to the Murraya should not be taken to belittle the applicant’s issues. The Court can only make orders under Pt 2A if it is satisfied that the subject trees severely obstruct sunlight to a window of, or a view from, a dwelling on the applicant’s land: s 14E(2)(a) of the Trees Act.

15. Had I found that the trees are planted so as to form a hedge, it is most likely that I would make orders for several trees to be pruned to restore the view from the subject dwelling. The obstructed view includes Terrigal Point and elements such as the water-land interface, identified by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140, at [26], as highly valued view components. The most valued parts of the view are now obstructed from living areas of a dwelling, from both standing and sitting positions. The trees that obstruct the view are close to the subject dwelling and form a dense screen. And finally, the view is one that was enjoyed from the subject dwelling for many years until the recent change of ownership of the adjoining property. Nevertheless, Pt 2A of the Trees Act does not apply to eight trees within the application, those numbered 21–28.

16. The Murraya hedge in the application grows on the respondent’s land along the common boundary, close to the balcony of Apartment 3. Due to the obstruction caused by the fig tree in particular, the Murraya hedge alone does not cause an obstruction at present. However, Mr Rae explained that the respondent has a Class 1 application with the Court relating to development of the adjoining property. Mr Rae submitted that the Respondent has allowed the trees to grow since buying the property so as to obstruct the view, thereby reducing the potential view impact of the proposed development relative to existing conditions. Should the Respondent be successful with the Class 1 application, Mr Rae submitted that the fig is likely to be removed, in which case the Murraya hedge would severely obstruct the view.

17. Although several trees obstruct sunlight to windows of Apartment 3, the Murraya hedge does not obstruct sunlight to the apartment’s windows.

Balancing the issues

18. The Court must not make an order unless it is satisfied that “the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part”: s 14E(2)(b).

19. I have considered the matters at s 14F before determining this application. The view obstruction has significantly impacted the owner of Apartment 3. The highly valued view was available from the apartment’s living areas. The Murraya hedge has no significant environmental or amenity values. Other trees that obstruct the view may be removed in the foreseeable future, leaving the Murraya as the principal view obstruction, but even if they are not, pruning the Murraya to reduce its height would have no adverse impacts on those plants, nor on the respondent’s landscape value. For these reasons, the applicant’s interests in having the Murraya pruned outweigh any orders to avoid interfering with those trees.

20. Therefore I will make orders to prune and maintain the hedge at the height of the fence on the common boundary.

Orders

21. The Court orders:

22. The application is granted only to the extent of the following orders.

23. Twice each year in May and November, beginning November 2025, the respondent is to prune, or engage a suitably experienced contractor to prune, the Murraya hedge adjacent to the common boundary shared with the applicants, to the height of the top of the boundary fence.

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

D Galwey

Acting Commissioner of the Court

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Amendments

04 December 2025

Jurisdiction amended.