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[2026] NSWLEC 1198
General information, not legal advice.
Land and Environment Court (NSW)
2026-04-15
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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: Van Leur v Wheeldon [2026] NSWLEC 1198
Hearing dates: 17 March 2026
Date of orders: 15 April 2026
Decision date: 15 April 2026
Jurisdiction: Class 2
Before: Galwey AC
Decision: 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 remove the 15 trees forming a hedge alongside her garage within 30 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) Should the respondent replace the hedge removed in Order (2), any replacement hedge in that location is to be of a species that either:
(a) does not exceed 4.5 metres in height, or
(b) can be readily maintained at 4.5 metres in height.
(4) If a replacement hedge planted in the same location as the hedge removed in Order (2) exceeds 4.5 metres in height, in April each year the respondent is to engage and pay for a suitably qualified, experienced and insured horticultural or arboricultural contractor to prune the hedge so that no tree is taller than 4.5 metres.
(5) The exhibits are returned, other than Exhibit A.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — obstruction of views — whether the obstruction is severe — privacy — landscape design — balancing of interests — orders for tree removal and maintenance of any replacement trees
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 4, 14A, 14B, 14C, 14D, 14E, 14F
Ku-ring-gai Local Environmental Plan 2015
Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
Ho v Warczak [2015] NSWLEC 1020
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Texts Cited: Safe Work Australia, Guide to managing risks of tree trimming and removal work (July 2016)
Category: Principal judgment
Parties: Tessie Van Leur (Applicant)
Judith Wheeldon (Respondent)
Representation: Counsel:
R Wilson (Agent) (Applicant)
J Wheeldon (Self-represented) (Respondent)
File Number(s): 2025/489574
Publication restriction: Nil
COMMISSIONER: From Middle Harbour, the land of Roseville Chase climbs up to the west. Tessie Van Leur enjoyed eastward views from the back of her dwelling at 37 Calga Street (37 Calga) down toward the water and further east to Killarney Heights. She claims to have lost the view as a result of trees growing on an adjoining property at 29C Calga Street (29C Calga), belonging to Judith Wheeldon. Ms Van Leur and Ms Wheeldon discussed the issue but were unable to agree on an outcome that would restore the view from 37 Calga. Ms Van Leur has applied to the Court pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for Ms Wheeldon to reduce the height of trees in a hedge and to maintain them at the reduced height. Ms Wheeldon values the trees’ contribution to her landscape and privacy and does not want them reduced in height.
The final hearing took place onsite, allowing me to observe the trees, the view and the view obstruction, issues of privacy and other elements of the two properties. Robert Wilson represented Ms Van Leur as her agent; Ms Wheeldon was self-represented. Along with statements and submissions from both parties, the Court has in evidence a report from arborist Walter Chan, commissioned by Ms Wheeldon.
The Court’s determination in this tree dispute must be made within the framework of the Trees Act, which enables the Court to make orders to remedy, restrain or prevent a view obstruction, but also limits the Court’s jurisdiction to do so. Relevant sections of the Trees Act are considered and determined in this judgment.
4 Act applies to trees on certain land
(1) This Act applies only to trees situated on the following land—
(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,
(b) any land of a kind prescribed by the regulations for the purposes of this section.
29C Calga is not within one of the zones designated (the ‘designated zones’) within the first arm of s 4(1)(a) of the Trees Act (before the bold text above). The regulations do not prescribe any kind of land: s 4(1)(b). Therefore, for the Trees Act to apply, the second arm of s 4(1)(a) (in bold text above) must be true: “…having regard to the purpose of the zone, having the substantial character of a zone so designated.”
The Land Use Table within the Ku-ring-gai LEP describes the objectives of the C4 – Environmental Living Zone (the C4 Zone) as follows:
Zone C4 Environmental Living
1 Objectives of zone
• To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
• To ensure that residential development does not have an adverse effect on those values.
• To ensure development does not result in further fragmentation of ecological communities, biodiversity corridors or other significant vegetation or habitat.
• To minimise direct and indirect risks to life, property and the environment from bushfire events.
• To ensure that development in this zone on land that adjoins land in Zone C1 National Parks and Nature Reserves or Zone C2 Environmental Conservation is compatible with the objectives of those zones.
• To enable other land uses that provide facilities or services to meet the day to day needs of residents.
Zone R5 Large Lot Residential
1 Objectives of zone
• To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.
• To ensure that large residential lots do not hinder the proper and orderly development of urban areas in the future.
• To ensure that development in the area does not unreasonably increase the demand for public services or public facilities.
• To minimise conflict between land uses within this zone and land uses within adjoining zones.
• To minimise direct and indirect risks to life, property and the environment from bushfire events.
Objectives of both the C4 Zone and the R5 Zone are to provide for residential development in areas with environmental or scenic values without adversely impacting those values. Both zones aim to ensure development is compatible with the objectives of adjoining zones. Both zones aim to minimise risks arising from bushfire events.
Zone R5 is a residential zone, which is a designated zone at s 4(1)(a) of the Trees Act. Therefore, with regard to the purpose of Zone C4, I am satisfied that the trees are within a zone that has the substantial character of a designated zone. The Trees Act applies to trees situated on 29C Calga.
The landscape at 29C Calga includes hedges, individual trees, lawn, garden beds and a pool. A garage is located next to a section of the western boundary. That section of the boundary is also the rear boundary of 37 Calga. At 29C Calga, a lawn to the east of the garage is surrounded on two sides by rows of Cupressus sempervirens, commonly known as Mediterranean cypress. The row of six trees south of the lawn is adjacent to Ms Wheeldon’s dwelling. The 15 trees west of the lawn (the trees), next to Ms Wheeldon’s garage, are the subject of these proceedings. Ten trees are planted at regular spacings in a straight row along the garage, with a further five trees planted in a row parallel to the other 10 trees at their northern end. Within the landscape, these 15 trees form one continuous hedge (the hedge). Ms Wheeldon planted them to form a screen for privacy and, along with the southern row of six trees, to create a garden room surrounded by green walls of foliage. The trees are up to 13 metres tall.
Pursuant to s 14A(1) of the Trees Act, Pt 2A of the Act applies only to groups of 2 or more trees that are planted so as to form a hedge, and rise to a height of at least 2.5 metres. Therefore, Pt 2A of the Trees Act applies to the 15 trees that form a hedge east of the garage at 29C Calga.
Ms Van Leur does not claim that the trees obstruct sunlight to her dwelling, only that they obstruct her view. Before the Court can make an order in these proceedings, it must be satisfied that the trees are severely obstructing a view from Ms Van Leur’s dwelling: s 14E(2)(a)(ii) of the Trees Act.
From her living room and balcony at the back of her dwelling, before the trees grew, Ms Van Leur had a view corridor to the east, with the distant treed landscape of Killarney Heights beyond a glimpse of the water of Middle Harbour. Mr Wilson described the narrow view corridor as modest, not focussed on the small section of visible water, but valued more for its open landscape view. It is the principal view from Ms Van Leur’s dwelling.
Ms Wheeldon submitted that Ms Van Leur has not demonstrated that she had a valuable view. Relying on the view-sharing principle at [25]-[29] of Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 (Tenacity), Ms Wheeldon said that water views are more valuable than land views. Ms Wheeldon said that the glimpse of water from Ms Van Leur’s dwelling is 475 metres away. Ms Wheeldon submitted that the Court should find here that the view obstruction is not severe, as it did at [131] of Haindl v Daisch [2011] NSWLEC 1145 (Haindl), where a qualitative assessment of the obstructed view found its value was marginal. Ms Wheeldon conceded that Ms Van Leur had water views before her trees grew, but pointed out that other trees on other neighbouring properties have also grown to obstruct the view.
On p 8 of his Tree Investigation Report, Mr Chan wrote: “In the context of the Trees (Disputes Between Neighbours) Act 2006, the current obstruction is not "severely" or "critically" obstructive, especially when balanced against the significant loss of amenity and privacy that the respondent would suffer if the trees were removed or topped.”
I find that the trees severely obstruct a view from Ms Van Leur’s dwelling. The hedge forms a dense screen less than 20 metres from the back of Ms Van Leur’s dwelling. The hedge obstructs the principal view corridor from her dwelling. In the absence of the hedge, other trees might partially obstruct the view corridor, but they do not obliterate the distant landscape view as the hedge does, and they are more distant from Ms Van Leur’s dwelling. Nothing in Tenacity’s view-sharing principle suggests that this view has little or no value.
Where Ms Wheeldon referred to the Court’s finding in Haindl, she ignored that the applicants in that case chose “to retain their own obstruction to the view” (at [131]), which the Court considered in reaching its finding. Here, no element of Ms Van Leur’s property contributes to the view obstruction. She has no means of restoring her view other than pruning or removing the trees, even if other trees might have reduced the view corridor in the meantime. At present, Ms Van Leur has no reason to approach other landowners to request pruning of their trees where they might obstruct her view, as the hedge is the principal obstruction. If the hedge’s view obstruction is dealt with, she might have cause to seek further favours from other neighbours.
I am satisfied that the trees severely obstruct a view from Ms Van Leur’s dwelling: s 14E(2)(a)(ii). Further to that test, at s 14E(2)(b) 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.” I will determine s 14E(2)(b) after considering matters at s 14F.
The Trees Act includes at s 14F a range of matters that the Court must consider before determining an application made under Pt 2A. Those matters that are relevant to this decision are considered here.
The hedge is separated from the common boundary by Ms Wheeldon’s garage. The hedge is less than 20 metres from Ms Van Leur’s dwelling.
Ms Van Leur purchased 37 Calga in 2009 (Exhibit A). The hedge was planted on 29C Calga in 2010 (Exhibit 1). The trees grew to 2.5 metres tall and into the view corridor while Ms Van Leur lived at 37 Calga. Ms Van Leur provided photographs showing the view from her dwelling before the trees grew.
Interfering with the trees, other than minor pruning, would ordinarily require consent from Ku-ring-gai Council (Council). No application for consent has been made to Council.
The trees have no historical, cultural, social or scientific value, and they make no significant contribution to the local ecosystem and biodiversity. They are not part of the natural landscape of the locality. They do not contribute to public amenity.
Ms Van Leur has proposed reducing the trees to a height of 3.4 metres. Mr Chan wrote in his report that this would adversely impact the trees, and he is right. The species would be unlikely to reshoot from the main stem following height reduction. The trees would be left with unattractive form and their contribution to the landscape would be lost. Mr Wilson argued that the Court has ordered such severe pruning of conifers before, for instance in Ho v Warczak [2015] NSWLEC 1020 (Ho). But in Ho, the original height of the trees is not described, so the impact that pruning orders might have on the trees is not known. Even reducing the trees at 29C Calga to 5 or 6 metres in height, which might be sufficient to partially restore the view, would adversely impact the trees. Pruning to restore the view should therefore be avoided.
The trees make a significant contribution to the landscape and garden at 29C Calga. Ms Wheeldon spent considerable effort from 2007 renovating her house and garden. She engaged professionals to design the garden, advise on species, and plant the hedges. The hedges west and south of the lawn were planted to frame the this ‘outdoor room’ north of her dwelling. Ms Wheeldon submitted that no other species would satisfactorily fulfil this function. Ms Van Leur submitted that, although the garden design might please Ms Wheeldon, it completely ignored the impact the hedges would have on 37 Calga. Mr Wilson argued that other conifer species could provide a similar landscape effect without growing tall enough to obstruct the view corridor, and offered a list of suitable alternatives. Ms Wheeldon submitted that her privacy would be negatively impacted if the hedge were shorter.
29C Calga is downslope from 37 Calga. Ms Wheeldon submitted that 37 Calga, as well as two properties to the north at 39 and 41 Calga Street, would overlook her property if not for the hedge. The affected areas that she showed the Court were the deck on the north side of her dwelling, between the dwelling and the northern lawn, and a corner of her lounge room with a glass wall. Ms Wheeldon values the privacy that the hedge provides.
Mr Wilson argued that potential for overlooking from 37 Calga was limited, and privacy could be maintained with much shorter trees. He pointed out another tree that would block the sightline from 39 and 41 Calga Street. Ms Wheeldon said the tree was deciduous so would not provide year-round privacy. Mr Wilson said he had visited 39 Calga Street and observed no potential for overlooking. He said 41 Calga Street was further upslope and overlooked all the lower properties, but was so distant from 29C Calga as to be no issue for privacy.
To my mind, Ms Wheeldon’s aim to prevent all overlooking from surrounding properties is perhaps unrealistic in such a built-up environment. It is true that shorter trees would provide a sufficient screen between 29C Calga and 37 Calga. Other vegetation provides screening from 39 Calga Street for much of the year. The dwelling at 41 Calga Street appears to be greater than 50 metres from Ms Wheeldon’s dwelling, so does not pose a great threat to her privacy. If Ms Wheeldon does not want to be observed on the deck on the northern side of her dwelling, the deck extends around to the eastern side with room there for entertaining. The corner she pointed out in her living area next to the glass wall is behind a couch and does not seem to be an area where anyone would spend time. Considering these factors, I do not consider privacy is a reason to avoid interfering with the trees. The impact to garden design is of greater importance, but as Mr Wilson argued, shorter trees could create a similar effect, even if they might take some time to establish from scratch, as opined by Ms Wheeldon.
Other trees are encroaching into Ms Van Leur’s view corridor, notably a Chinese elm and a cheese tree at 41A Griffith Avenue. Mr Chan discussed those trees in his report, but because he did not visit 37 Calga, and views do not fall within his area of expertise, I give his findings little weight here. Although those trees might not form a hedge, and might not fall within Pt 2A of the Trees Act, Ms Van Leur is able to approach the landowner to request pruning should she wish. Those trees do not screen the entirety of the view as the hedge at 29C Calga does.
Ms Van Leur has taken all reasonable steps to rectify the obstruction by negotiating with Ms Wheeldon, who ultimately was unwilling to prune the trees due to the negative impact of such severe pruning. Had Ms Wheeldon considered potential impacts to her neighbours when designing her garden, the current situation might have been avoided. Ms Wheeldon made it clear during her submissions that she only considered her own privacy and garden design.
The trees are evergreen, so their view obstruction remains throughout the year.
The view is a pleasant landscape view, with a glimpse of water, and is valued by Ms Van Leur. The hedge leaves her little view of value.
The view is obstructed from Ms Van Leur’s deck, living room and bedroom. Ms Wheeldon said that the impact to views from these locations should be given less weight than view impacts from living areas. Again, Ms Wheeldon relies on Tenacity’s view-sharing principle, which includes at its third step: “The impact on views from living areas is more significant than from bedrooms or service areas…” Ms Wheeldon submitted that the Court relied on this principle when it found at [108] of Haindl that a balcony was not a principal entertaining area.
During the onsite view, I observed the hedge from Ms Van Leur’s living room. We then stepped from the living room out to the deck and observed the hedge. From both locations, the hedge severely obstructed the view. Both these locations are living area that are used frequently. In Haindl, the balcony referred to at [108] was off a bedroom. I see no reason to reduce the weight given to the hedge’s view obstruction based on the viewing locations at 37 Calga.
(b) 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.
Ms Van Leur values the view from 37 Calga for the open and green outlook it lends to her dwelling. The trees in the hedge at 29C Calga severely obstruct the view. Other trees partly obstruct the view, but they do not remove it entirely, as the hedge does, and there is some possibility that Ms Van Leur could negotiate with the owners of those trees.
The principal reasons to avoid interfering with the trees in the hedge are aesthetics and privacy. I accept that the trees are integral to Ms Wheeldon’s garden design, however a similar effect could be achieved with shorter trees. Due to the impacts that severe pruning would now have on the trees, reducing them in height sufficiently to restore the view is unsuitable. But they can be removed and replaced, even though it may take a few years for new trees to achieve a similar effect. Impacts to Ms Wheeldon’s privacy should be less than she described, as her dwelling and landscape provide living and entertaining areas that are not within neighbours’ sightlines. Replacement trees would also restore some screening over time. Despite Ms Van Leur’s proposed hedge height of 3.365 metres, I observed that a height of 4.5 metres would restore her view sufficiently while providing some privacy and amenity for Ms Wheeldon.
Ms Van Leur’s interests in restoring her view outweigh reasons to avoid interfering with the trees. The most suitable outcome is to remove the trees and replace them with an appropriate species that will not grow above, or can be readily maintained at, a height of 4.5 metres. If replacement trees do grow taller than 4.5 metres, pruning will reduce them to 4.5 metres annually, though they will grow a little taller between pruning events. Ms Wheeldon may choose to replace trees in her other hedge for consistency, but that is a matter for her.
Mr Wilson researched alternative species and provided a list for Ms Wheeldon to consider. Mr Wilson’s list includes several conifers:
Juniperus scopulorum 'Skyrocket'
Juniperus chinensis 'Spartan'
Thuja occidentalis 'Smaragd'
Cupressus s**empervirens 'Nitschke's Needles'
I note that some of these will grow considerably taller than 4.5 metres. Ms Wheeldon obtained professional advice on tree species previously, and can do so again. The orders will neither dictate nor restrict her selection.
The Court orders:
The application is granted to the extent of the following orders.
The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the 15 trees forming a hedge alongside her garage within 30 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
Should the respondent replace the hedge removed in Order (2), any replacement hedge in that location is to be of a species that either:
(a) does not exceed 4.5 metres in height, or (b) can be readily maintained at 4.5 metres in height.
**********
Citation of Trees (Disputes Between Neighbours) Act 2006 (NSW) in [11] amended from Pt 2 to Pt 2A.
Citation of Trees (Disputes Between Neighbours) Act 2006 (NSW) in [22] amended.
Van Leur
Wheeldon [2026] NSWLEC 1198