Webber v Widdup

Parties: Matthew Webber (First Applicant)
Jennifer Mastras (Second Applicant)
Garry Widdup (First Respondent)
Beverley Widdup (Second Respondent)

Representation: M Webber (Self-represented) (First Applicant)
J Mastras (Self-represented) (Second Applicant)
G Widdup (Self-represented) (First Respondent)
B Widdup (Self-represented) (Second Respondent)

File Number(s): 2025/135696

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER: For many years, Mr and Mrs Widdup, the respondents, have owned and occupied a battle-axe shaped waterfront property in Connells Point. The respondents’ dwelling is designed to optimise Georges River views to the east and southeast while a adjoining street front dwelling faced northwest.

2. The two neighbouring properties south and southwest of the respondents had a similar configuration, with a waterfront dwelling facing east southeast and a street front dwelling oriented towards the northwest. Mr Webber and Ms Mastras, the applicants, have occupied the street front dwelling since August 2024.

3. From the street, the common boundary extended towards south-east and sloped downhill towards the waterfront. The respondents’ dwelling was close and parallel to the common boundary and extended about 10 metres (m) further south-east than the applicants’ dwelling.

4. A long-established semi-formal Murraya hedge commenced at the rear of the respondents’ dwelling and continued beside the boundary towards the waterfront for about 14m. Near the dwelling, the hedge appeared to be about 4-4.5 m tall, then increased in height downslope towards around 5m nearer the waterfront.

5. Mr Webber and Ms Mastras claimed the hedge was obstructing views and sunlight and encouraged moss and weed growth on a pathway used for waterfront access. Along with hedge debris which also blocked drains, they contended the moss and weeds were slipping hazards that caused risk to persons.

6. The applicants noted two conversations with the respondents about the hedge and included copies of letters dated 20 January 2025 (letter 1), and 27 January 2025 (letter 2). In letter 2, the applicants advised that their arborist would prune the hedge on 3 February 2024 from the applicants’ property to a height of 3m, if the respondents did not reply prior.

7. Though the applicants did not receive a reply, when the applicants’ arborist commenced pruning the hedge on Monday 3 February 2024, Mr Widdup reacted strongly and the pruning was terminated. The applicants subsequently noted that, “Communication with Garry and Beverley has now ceased and we are enlisting your help with the matter”.

8. Consequently, Mr Webber and Ms Mastras made an application, pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for pruning of the trees to a ‘manageable height’ of 2.5m.

The onsite hearing

9. Both parties were self-represented at the onsite hearing. The trees were initially assessed from the respondents’ land, then obstruction of sunlight and views and impacts of overshadowing were considered, followed by oral submissions on the applicants’ deck.

The applicants’ submissions

10. At question 4 of the Tree Dispute Claim Details (Form G), Mr Webber and Ms Mastras claimed, “[t]he entire morning of sunlight is lost from this hedge” but clarified, at question 5, that “[n]o windows are obstructed”. The applicants contended the hedge was primarily obstructing sunlight to their waterfront access pathway, “causing moss and weeds to grown [sic] and clogging all our pipes as it has grown so large it is almost unmanageable”. At question 7, the applicants noted, “[t]he issue is only the height and size of the hedge”.

11. In letter 1, the applicants acknowledged the privacy and greenery the hedge afforded the respondents but said the substantial height of the hedge caused significant obstruction of light and water views and “mess in our yard.”

12. Letter 1 noted that council property regulations require that:

“hedges and similar vegetation should not exceed 2.5 meters in height (this is also outlined in 14 A(1) of TREES ACT AUSTRALIA, which is a national law). The hedge in question appears to be approximately 5+m tall. The Trees Act of Australia also states that vegetation needs to be 3-4 meters from all property lines and this hedge is right on our boundary”.

13. Mr Webber and Ms Mastras advised they would procure a quote from an arborist friend for trimming the hedge to a height that complies with the law and addresses the hedge’s negative impacts on the applicants’ “property and yard as outlined above. We trust this approach will strike a fair balance between maintaining privacy and ensuring everyone is happy”.

14. Summarised proposed orders under Pt 2A of the Trees Act:

15. Prune the Murraya hedge to 2.5m tall.

16. Maintain the Murraya hedge at 2.5m tall.

The respondents’ submissions

15. Mr and Mrs Widdup were restrained in their submissions but resisted intervention with the Murraya hedge and pruning to a height of 2.5m specifically. The respondents noted the hedge’s contribution to privacy from oversight from the neighbouring two-storey dwelling, enhancement of a sense of enclosure, and wind abatement.

Jurisdictional requirements – Part 2A

16. Part 2A provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Although the Trees Act does not define a ‘hedge’, the Court cannot make orders under Pt 2A unless nominated trees meet the requirements of a hedge for the purpose of the Trees Act, at s 14A(1), and are causing a severe obstruction of sunlight to a window of an applicants’ dwelling, or of views from the dwelling, at s 14E(2)(a). Even when these jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.

17. Section 14A(1) states:

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).

18. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

19. Section 14C(1) stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

20. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

21. Section 14E addresses matters of which Court must be satisfied before making an order, as follows:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

22. Section 14E(2) is particularly significant and states that:

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

(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) 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.

23. If the Court is satisfied an obstruction is severe, at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of the following matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

24. Section 14F: Matters to be considered by the Court

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(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,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction,

(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,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

Findings

Do the trees form a hedge?

25. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act. Section 14A(1) is engaged as I am satisfied the trees were planted so as to form a hedge and exceeds 2.5m in height.

26. Section 14B is engaged as the applicants lease a dwelling from which they claim views are severely obstructed by a hedge on adjoining land. Tenants have the rights of a property owner to make an application under the Trees Act for an order to remedy, restrain or prevent a severe sunlight or view obstruction.

27. The applicants have satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land, and provided evidence confirming lodgement of the application documents with Council.

28. Section 14D of the Trees Act details the Court’s jurisdiction to make a broad range of orders.

Did the applicants make a reasonable effort to reach agreement?

29. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152*;* at [195], Preston CJ stated that the language at s 10(1)(a) of the Trees Act “is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process”. The requirement at s 14E(1)(a) of Pt 2A is the same as at s 10(1)(a) of Pt 2 of the Trees Act.

30. Regardless that the applicants’ hedge pruning without permission induced a strong reaction from Mr Widdup, the requirement to make a reasonable effort to reach agreement does not prescribe the conduct of applicants. The applicants noted holding verbal discussions with the respondents and included copies of two letters which clearly outlined their grievances. Therefore, I am satisfied that s 14E(1)(a) is engaged. The applicants also satisfied s 14E(1)(b) by serving the application documents on the respondents and on Council, as required at s 14C of the Trees Act.

Obstruction of sunlight to a dwelling window

31. Though Mr Webber and Ms Mastras initially pursued obstruction of sunlight by the hedge, this issue was set aside once the applicants appreciated that the jurisdiction was limited to obstruction of sunlight to a window of a dwelling. The hedge commenced about 10m east of the applicants’ dwelling. It did not obstruct sunlight to any of the applicants’ windows but shaded the applicants’ paved path to the waterfront, particularly in winter when the sun’s arc is low in the northern sky.

32. Pt 2A provides no remedy for obstruction of sunlight to gardens or paths nor for implications of same such as growth of weeds and moss, as mentioned by the applicants, or mould, as included in an application photograph.

Obstruction of a view from a dwelling

Is a view obstruction severe?

33. Due to view obstruction by the two-storey waterfront dwelling to their east southeast, the applicants’ best water views from their dwelling were from the back deck looking eastward down the paved driveway between the hedge and the east side neighbours’ northern dwelling wall. Though the hedge ended well back from the waterfront, because it commenced about 10m from the applicants’ deck and extended southeast for a further 14m, the applicants’ water view was restricted to a narrow tunnel.

34. Had the hedge been 2.5m tall, as proposed by Mr Webber and Ms Mastras, water views available from the applicants’ back deck would have been broader, extending much further east and north-east. Considering the significance placed on water views and land water interface (see Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140; at [26]), I am satisfied the obstruction of the applicants’ view by the hedge is severe.

35. As s 14E(2)(a) of the Trees Act is satisfied by the severe obstruction of a view from the applicants’ dwelling, s 14D enables the Court to make any such orders it thinks fit to remedy, restrain or prevent the view obstruction. In order to determine, what, if any, orders should be made, the Court must consider the factors at s 14F in undertaking the balancing of the parties’ interests, at s 14E(2)(b) of the Trees Act.

Section 14F considerations

36. The trees are located in an established hedge close to the common side boundary. In letter 1, the applicants claimed that the “Trees Act of Australia also states that vegetation needs to be 3-4 meters from all property lines and this hedge is right on our boundary”. However, this is incorrect. There is no requirement under the Trees Act (which is NSW legislation) or council regulations restricting or preventing property owners from planting next to a boundary (s 14F(a)).

37. Section 14F(c) considers whether the trees grew to a height of 2.5m or more during the period that the applicants have owned (or occupied) the relevant land. At question 3 of Form G, Mr Webber and Ms Mastras claimed the hedge was 6m tall when their application was lodged on 8 April 2025 and approximately 4.5m tall upon their occupation in August 2024. Orally, the applicants submitted that upon their occupation, the hedge was about the height of the respondents’ dwelling eaves.

38. On or around 7 July 2025, about three weeks prior to the final hearing, the Widdup’s had the hedge height pruned. Mr Webster provided the respondents and the Court with photographs of partially completed pruning, which showed pruned and unpruned hedge sections. Based on the photographs from 7 July 2025, the unpruned sections of the hedge appeared about 0.5m taller than the eaves.

39. The introduction of Part 2A of the Trees Act followed the ‘Review of the Trees (Disputes Between Neighbours) Act 2006’ (the Review) published by the NSW Department of Justice and Attorney General in November 2009. The Interpretation Act 1987 (NSW) provides the Court with power to consider relevant extrinsic material that may reasonably bear on a determination under the Trees Act. In this respect, I consider recommendations from the Review.

40. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review. In accordance with the Review’s Recommendation 9, the jurisdiction of Pt 2A of the Trees Act was not intended to provide access to sunlight or a view not previously available to applicants. Discussing the Review in McDougall v Philip [2011] NSWLEC 1280 (McDougall), at [23], Commissioner Fakes said,

“The discussion relating to Recommendation 9 [page 35] states, in part, that:

“The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.””

41. Other contextualised elements from Recommendation 9 are found in McDougall; at [22]:

“c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation.

d) That the new procedure be drafted so as not to create a right to light or views.”

42. This guidance has been consistently applied by the Court. Therefore, there is no scope for Court orders for pruning below the height of the hedge upon the applicants’ occupation i.e. the height of the respondents’ dwelling eaves.

43. Though not native to Australia, the trees are dense and are likely to provide habitat for fauna. Thus, they contribute to the local ecosystem and biodiversity (s 14F(g)).

44. The trees provided little intrinsic public amenity (s 14F(i)).

45. Section 14F (k) of the Trees Act considers the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees. Although Murraya trees are quite hardy and tolerant of repeated pruning, the relatively advanced age of these specimens renders them more prone to stress than younger trees. Pruning to 2.5m would involve removal of more than 50% of the trees’ canopies and leave little foliage. Given that the leaves are the source of energy that supports all tree functions, such heavy pruning is likely to be detrimental to tree health and vigour.

46. While there is no national or state law nor Council property regulation preventing hedges from exceeding 2.5m in height, it was apparent that the Widdup’s hedge had been maintained relatively regularly for many years. The hedge images in Appendix B on page 9 of the Tree Dispute Application (Form C) showed that the side of the hedge facing the applicants’ property had been maintained fairly straight along the boundary for many years with a slight lean off vertical, back towards the Widdup’s property.

47. The hedge contributed to privacy, landscaping, garden design, the amenity of the land on which it is situated, and protection from the sun and wind for both parties (s 14F(l)).

48. The east side neighbours’ waterfront dwelling was “anything, other than the trees, that has contributed, or is contributing, to the obstruction” (s 14F(m)).

49. The applicants attempted to have the hedge pruned to rectify the view obstruction (s 14F(n)).

50. Section 14F(s) deals with “such other matters as the Court considers relevant in the circumstances of the case”.

51. Though claims of leaves and other debris causing mess and blocking drains more commonly arise in applications under s 10(2)(a) of Pt 2 of the Trees Act, these issues are dismissed upon consideration of the Tree Dispute Principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker*)*, at [20]:

“[20] It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

52. This Tree Dispute Principle established in Barker has been consistently applied by the Court and was extended in Hendry v Olsson [2010] NSWLEC 1302 (Hendry*)*, at [11]-[14], to include the cleaning of mould and slime.

Conclusion

53. Part 2A of the Trees Act aims to strike a balance between applicants retaining sunlight and or views and respondents maintaining privacy and environmental benefits from hedges. Typically, this involves orders of the Court to remedy or prevent hedges that grow to severely obstruct sunlight from dwelling windows, or to severely obstruct views, but does not extend to providing respondents with sunlight or views that were not available upon their occupation.

54. While two trees must be at least 2.5m tall to satisfy s 14A(1), the Trees Act does not dictate that “hedges and similar vegetation should not exceed 2.5 meters in height” or “that vegetation needs to be 3-4 meters from all property lines”, nor do council regulations. These claims included in letter 1 were incorrect and the applicants’ reference for these claims, the ‘Trees Act of Australia’, does not exist.

55. The applicants claimed the hedge was about 4.5m tall upon their occupation. Considering Pt 2A of the Trees Act was not intended to provide access to a view not previously available to applicants, it would be unreasonable to order pruning below a height of 4.5m. Given that pruning the hedge at around 4.5m tall will make negligible difference to the applicants’ view obstruction, the undesirability of disturbing or interfering with the trees by making an order under this Part outweighs any imperative to prune the trees (s 14E(2)(b)).

56. Drains blocked by debris and growth of weeds, moss, and mould were issues raised by the applicants that were dismissed with consideration of the Tree Dispute Principle in Barker, at [20], and the decision in Hendry, at [11]-[14].

Orders

57. The Court orders that:

58. The application is refused.

J Douglas

Acting Commissioner of the Court

**********