Wilson v Clean Investments Pty Ltd

Before: Galwey AC

Decision: The Court orders:
(1) The Pt 2 application is refused.
(2) The Pt 2A application is refused.
(3) The exhibits are returned, other than Exhibit A.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — zoning of land — whether the zone has the substantial character of a designated zone — whether the Trees Act applies — Pt 2 application — whether neighbouring trees have caused damage to property — whether a tree is likely to cause damage — dividing fence — whether the fence is a sufficient dividing fence — whether the entire dividing fence needs replacement — Pt 2A application — whether trees are severely obstructing sunlight — whether trees should be pruned or removed

Legislation Cited: Dividing Fences Act 1991 (NSW), ss 3, 4, 6, 7, 8, 13A
Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 4, 7, 9, 10, 12, 14A, 14B, 14D, 14E, 14F
Wingecarribee Local Environmental Plan 2010, cll 4.2A, 5.18

Cases Cited: Aaron v Haynes [2007] NSWLEC 294
Barton Securities Limited v Warringah Council & Others (2009)170 LGERA 223; [2009] NSWLEC 179
Ednie v Melman [2019] NSWLEC 1594
Ferderer v Cunninghame [2021] NSWLEC 1097
Hills v Lennon [2025] NSWLEC 1711
Ingham v Pettigrew [2016] NSWLEC 1002
Maurici v Kaldor [2024] NSWLEC 1267
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
The Owners – Strata Plan No. 58036 v The Estate of William Hutchinson [2025] NSWLEC 76
The Owners – Strata Plan No 58036 v The Estate of William Hutchinson [2025] NSWLEC 1625

Texts Cited: https://www.planning.nsw.gov.au/policy-and-legislation/environment-and-heritage/environment-zones (viewed 9 January 2026)
Roget’s Thesaurus

Category: Principal judgment

Parties: Kathryn Jane Wilson (Applicant)
Clean Investments Pty Ltd (Respondent)

Representation: Counsel:
C Koikas (Applicant)
L Nurpuri (Respondent)
Solicitors:
Whiteacre Legal (Applicant)
Storey & Gough Lawyers (Respondent)

File Number(s): 2025/316161

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Kathryn Wilson (the applicant) bought her property at 299 Fountaindale Road, Robertson (‘No. 299’), in the NSW southern highlands, in 2002. The property includes a dwelling surrounded by paddocks, where horses are kept, and a dam. On the larger adjoining property at 277 Fountaindale Road, Robertson (‘No. 277’), 139 cypress trees planted in rows grow adjacent to Ms Wilson’s long northern boundary and part of her eastern boundary. An old wire fence (the fence) marks these boundaries. No. 277 is owned by Clean Investments Pty Ltd (the respondent). Bobby Andreski is both the director and secretary of the respondent.

2. Ms Wilson claims the trees have damaged the fence. She 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 (as amended at the hearing) for the respondent to remove one tree in the cypress row on the grounds that the tree is likely to fall onto the fence. Pursuant to s 13A of the Dividing Fences Act 1991 (NSW), Ms Wilson also seeks orders for the fence along her northern and eastern boundaries to be replaced, with the costs shared equally by the parties.

3. Ms Wilson has also commenced separate proceedings in the NSW Civil and Administrative Tribunal (NCAT) under the Dividing Fences Act seeking similar orders regarding the dividing fence. She hopes resolution of the fence issue in the current proceedings will negate the need for those proceedings to continue.

4. Pursuant to s 14B (Pt 2A) of the Trees Act, Ms Wilson seeks orders (as amended at the hearing) for the respondent to remove, or alternatively to prune, 53 cypress trees (T30–T83, but with no tree numbered T78) along her northern boundary to remedy and prevent a severe obstruction of sunlight to windows of her dwelling.

5. The onsite hearing on 10 December 2025 allowed the Court to inspect the site. Mr Koikas, of Counsel, represented the applicant; Ms Nurpuri, of Counsel, represented the respondent. Mr Koikas and Ms Nurpuri pointed out various features during the site inspection.

6. Ms Wilson’s affidavits of 7 November 2025 and 24 November 2025 were read (recorded as Exhibits B and C respectively). In evidence are: Ms Wilson’s application forms (Exhibit A); a joint report by Chris Williamson, a building designer engaged by the applicant, and Martin O’Toole, an architect engaged by the respondent (Exhibit D); a report by Geoff Beisler, consulting arborist of Green Earth Tree Consultancy (annexed to Ms Wilson’s 7 November 2025 affidavit); along with other material annexed to Ms Wilson’s affidavits, referred to where relevant below. Wingecarribee Shire Council’s (‘Council’) Team Leader of Tree Management wrote a one-page letter providing some information on Council’s tree permit process. I also rely on my own arboricultural expertise and experience in making this decision.

Whether the trees are on land to which the Trees Act applies

7. The Trees Act is limited in its reach at s 4(1), applying only to trees on certain land. I copy s 4(1) here, with my emphasis in bold.

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.

8. The parties disagree on whether the trees are situated on land to which the Trees Act applies.

9. The respondent’s land 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.” There are two possible interpretations of this test:

10. …having regard to the purpose of the zone (of the land on which the trees are situated), (that zone) having the substantial character of a designated zone; or

11. … having regard to the purpose of the zone (that is, one of the designated zones), the trees are on land that has the substantial character of a designated zone.

12. Both Mr Koikas and Ms Nurpuri were of the opinion that the first interpretation is the correct one. That is, as Ms Nurpuri put it in her written submissions, “…on a plain reading of the section, it is by reference to the character of the zone, not the character of the land.” Or as Mr Koikas put it: “The question thus becomes: having regard to the purpose of the C3 Environmental Management Zone, does the C3 Zone have the substantial character of a designated zone?”

13. Mr Koikas and Ms Nurpuri disagree on whether the subject zone has the substantial character of a designated zone.

Evidence

12. The evidence shows, and the parties agree, that the respondent’s land where the trees are situated is within land zoned ‘C3 – Environmental Management’ (Zone C3) under the Wingecarribee Local Environmental Plan 2010 (the WLEP). In the WLEP, Zone C3 is one of four ‘Conservation Zones’: C1 National Parks and Nature Reserves; C2 Environmental Conservation; C3 Environmental Management; and C4 Environmental Living.

13. The NSW government’s website (at https://www.planning.nsw.gov.au/policy-and-legislation/environment-and-heritage/environment-zones) explains that zones formerly known as environment zones are now known as conservation zones:

“Environment zones are now known as conservation zones across local environmental plans prepared under the Standard Instrument Order.

There are 4 types:

Zone C1 – National Parks and Nature Reserves

Zone C2 – Environmental Conservation

Zone C3 – Environmental Management

Zone C4 – Environmental Living.

The objectives and land use tables remain the same across all zones. Only the prefix and zone category changed.

…

This is a change of name for administrative reasons. The term ‘environment zone’ is too broad and confusing. The new name signals the conservation land use function more clearly.

The aim is to conserve the environmental values and natural qualities in areas where this land use zoning is applied.”

14. I copy here the relevant section, Zone C3, from the Land Use Table in the WLEP:

Zone C3 Environmental Management

1 Objectives of zone

• To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values.

• To provide for a limited range of development that does not have an adverse effect on those values.

• To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns.

• To minimise the proliferation of buildings and other structures in these sensitive landscape areas.

• To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas.

• To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability.

2 Permitted without consent

Environmental protection works; Extensive agriculture; Home-based child care; Home occupations

3 Permitted with consent

Agricultural produce industries; Agritourism; Airstrips; Bed and breakfast accommodation; Cellar door premises; Community facilities; Dairies (pasture-based); Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Health consulting rooms; Helipads; Home businesses; Horticulture; Information and education facilities; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (outdoor); Roads; Roadside stalls; Secondary dwellings; Signage; Tank-based aquaculture; Viticulture; Water storage facilities

4 Prohibited

Industries; Local distribution premises; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3.

The applicant’s submissions

15. Mr Koikas argued that Zone C3 has the substantial character of a residential zone, specifically the R5 Large Lot Residential Zone (Zone R5) in the WLEP. I summarise here his submissions on this point.

16. The purpose of Zone C3 is informed by its objectives and the kind of development that is permissible within the zone.

17. Within Zone C3’s objectives, Mr Koikas highlighted the second objective: “To provide for a limited range of development that does not have an adverse effect on those values.” (The values referred to are those in the first objective: special ecological, scientific, cultural or aesthetic values.) The first objective of Zone R5 is: “To provide residential housing in a rural setting while preserving, and minimising impacts on, environmentally sensitive locations and scenic quality.” Mr Koikas suggested that these two objectives neatly align.

18. Mr Koikas also highlighted the first part of Zone C3’s fifth objective: “To provide for a restricted range of development and land use activities that provide for rural settlement…” Zone R5’s fifth objective is: “To provide a restricted range of opportunities for employment development and community facilities and services that do not unreasonably or significantly detract from— (a) the primary residential function, character and amenity of the neighbourhood, and (b) the quality of the natural and built environments.” Mr Koikas pointed out the overlap of those two objectives.

19. The zone’s purpose is further informed by the type of development permitted within the zone. Again, Mr Koikas pointed out the overlap between Zone C3 and Zone R5: ‘home occupations’ are permitted without consent in both zones, while ‘dual occupancies (attached)’ and ‘dwelling houses’ are permitted with consent in both. Mr Koikas submitted (in written submissions) that all other styles of residential development (for example, multi-dwelling housing, residential flat buildings, dual occupancies (detached), group homes, hostels, semi-detached and attached dwellings) are prohibited in both zones. While secondary dwellings are permitted with consent in Zone C3, and according to Mr Koikas they are prohibited in Zone R5, he argued that all other consistencies between the two zones demonstrate that they substantially share the same character.

20. Mr Koikas pointed to cl 5.18 of the WLEP, where at subclause (7) the meaning of ‘residential zone’ includes Zone C3, but only within cl 5.18.

21. Mr Koikas further noted that the current residential use of the applicant’s property would be permissible with consent in Zone R5.

The respondent’s submissions

22. Ms Nurpuri stressed the presence of the word ‘substantial’ at s 4(1)(a) of the Trees Act (emphasis added in bold): “…having the substantial character of a zone so designated.” Ms Nurpuri took the Court to Sheahan J’s reference to the Macquarie Dictionary’s definition of ‘substantial’ at [99] of Barton Securities Limited v Warringah Council & Others (2009)170 LGERA 223; [2009] NSWLEC 179 (‘Barton’): “of considerable amount”. Here, as in Barton, the word “…takes its meaning in and from its context.”

23. Using Zone C3’s objectives as the starting point to determine the zone’s purpose, Ms Nurpuri submitted that Zone C3 does not have the substantial character of any of the zones designated at s 4(1)(a) of the Trees Act. Zone C3’s purpose is not residential, unlike the WLEP’s Zone R5. Zone R5’s objectives include providing for residential housing, and ensuring that the primary residential function is not unreasonably or significantly detracted from by employment development and community facilities and services. On the other hand, Zone C3’s objectives include providing for a limited range of development, and minimising the proliferation of buildings and other structures.

24. Moving on to Zone C3’s permissible uses, Ms Nurpuri submitted that these uses should not be considered in isolation from other applicable clauses within the relevant planning instrument applying to the subject land. For instance, principal development standards applying to land within Zone C3 further restrict permissible development. Using the respondent’s property as an example, Ms Nurpuri explained that the erection of dwelling houses and dual occupancies (permitted with consent in Zone C3) is restricted by cl 4.2A of the WLEP to lot sizes of at least 40 hectares in Zone C3. Such a restriction does not apply to Zone R5, nor to any residential zone. Despite exceptions, Zone C3 specifies a minimum lot size of 40 hectares, while Zone R5, intended for residential development, specifies a minimum lot size of 0.4 hectares.

25. Residential development within Zone C3 is further limited at cl 4.6(6) of the WLEP by a restriction on subdivision.

26. Ms Nurpuri asked the Court to view on the NSW Planning Portal Spatial Viewer the extent of Zone C3 around the subject land. The respondent’s land is more than a kilometre from the residential zoning in the township of Robertson and from any land in Zone R5. The land surrounding the respondent’s land is extensively Zone C3, demonstrating a deliberate intent within the WLEP to limit development that forms the character of any of the designated zones. Other than a few exceptions, including the applicant’s land, surrounding properties are mostly 40 hectares or larger.

27. Ms Nurpuri posited that, although Zone C3 in other Local Environmental Plans may share the substantial character of a zone designated at s 4(1)(a) of the Trees Act, WLEP’s Zone C3 does not have the substantial character of a designated zone. For instance, in Hills v Lennon [2025] NSWLEC 1711, other planning controls for Zone C3 in the Sutherland Shire Local Environmental Plan 2015 (the SSLEP) allowed the Court to find that the zone had the substantial character of a designated zone. Planning controls for Zone C3 differ between the WLEP and the SSLEP. For instance, SSLEP’s Zone C3 minimum lot size is 850 m2, whereas WLEP’s is 40 hectares. It is WLEP’s Zone C3 that must have the substantial character of a rural-residential or other designated zone, which it does not.

28. Should the alternative interpretation of s 4(1)(a) of the Trees Act apply, and it is the subject land that must have the substantial character of a designated zone, Ms Nurpuri submitted that No. 277 does not have the substantial character of such a zone. Despite containing a dwelling, the respondent’s 40-hectare property is, or was, used for rural purposes.

Findings

Zone or land

29. On the matter of interpretation of s 4(1)(a) of the Trees Act, the outcome in these proceedings would not be affected by my view. That is because, to my mind, neither Zone C3 in the WLEP nor the land at No. 277 has the substantial character of a designated zone. Nevertheless, to complete the judicial process, I contemplate the following.

30. Relying only on the wording of s 4(1)(a), as perhaps one should, is not necessarily determinative. The phrase ‘having the substantial character of a zone so designated’ could apply to ‘the zone’, which immediately precedes it (as Counsel for each party says it does). In that case, ‘the zone’ would refer to the zone of the land on which the trees are situated. The Court has applied this interpretation in several decisions under the Trees Act, including Aaron v Haynes [2007] NSWLEC 294 at [9]; Ingham v Pettigrew [2016] NSWLEC 1002 at [11]; Ednie v Melman [2019] NSWLEC 1594 at [6]; Ferderer v Cunninghame [2021] NSWLEC 1097; The Owners – Strata Plan No. 58036 v The Estate of William Hutchinson [2025] NSWLEC 76 (‘SP 58036 No. 1’); and The Owners – Strata Plan No 58036 v The Estate of William Hutchinson [2025] NSWLEC 1625 (‘SP 58036 No. 2’).

31. Alternatively, the phrase ‘having the substantial character of a zone so designated’ could apply to ‘any land’, the first two words at s 4(1)(a). In Maurici v Kaldor [2024] NSWLEC 1267 (Maurici), this was the preferred interpretation of the applicant, who proposed (at [36]) that “… the words ‘having regard to the purpose of the zone’ are essentially parenthetical”, applying to ‘a zone so designated’ in the subsequent phrase.

32. The highest authority among the judgments listed above is found in SP 58036 No. 1, where, in a decision on a Notice of Motion concerning a different issue, Beasley J considered s 4(1)(a) of the Trees Act at [6]-[10]:

[6] A further issue in this matter concerns jurisdiction. Pursuant to s 4(1) of the Trees Act, the Act applies to trees on the following land (emphasis added):

“(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…”

[7] The Land and the Applicant’s Land are zoned MU1 Mixed Use under the Sydney Local Environmental Plan 2012 (Sydney LEP).

[8] The objectives of the MU1 Mixed Use Zone are the following [as quoted from the applicant’s written submissions]:

“9. The Sydney LEP which took effect on 26 April 2023 introduced the MU1 Mixed Use Zone. It had the following Objectives:

• “To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To ensure land uses support the viability of nearby centres.

• To integrate suitable business, office, residential, retail and other land uses in accessible locations that maximise public transport patronage and encourage walking and cycling.””

[9] The LEP also permits with consent development of the following kind [as quoted from the applicant’s written submissions]:

“Amusement centres; Boarding houses; Car parks; Centre-based child care facilities; Commercial premises; Community facilities; Entertainment facilities; Function centres; Information and education facilities; Light industries; Local distribution premises; Medical centres; Oyster aquaculture; Passenger transport facilities; Places of public worship; Recreation areas; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Shop top housing; Tank-based aquaculture; Tourist and visitor accommodation; Vehicle repair stations”

[10] While it would appear, based on the purposes of the MU1 Mixed Use Zone, and the development that is permissible with consent, that the zone has the substantial character of a zone designated “business” – hence making the Application within the jurisdiction of the Trees Act – resolution of that issue can be left for the final hearing.

33. His Honour clearly considered that the subject zone (of the land where the trees are situated), in that case an MU1 Mixed Use Zone, must have the substantial character of a zone designated at s 4(1)(a) of the Trees Act. Following the final hearing in those proceedings, and taking the same approach, I found in SP 58036 No. 2 that the MU1 Mixed Use Zone had the substantial character of a zone designated ‘business’.

34. Where the alternative interpretation appears to have been applied in Maurici, the circumstances in that case were highly unusual: some trees in the application were situated on a section of unzoned land. The respondents submitted, on the basis that the zone must have the substantial character of a designated zone, and where trees were on unzoned land, that the Trees Act could not apply to those trees. The applicant, on the other hand, submitted that the land on which the trees are situated must have the substantial character of a designated zone (see [31] above). After considering the substantial character of the residential zone surrounding the unzoned land, Horton C wrote at [39] of Maurici: “…I note here my preliminary view that the text at s 4(1)(a) of the Trees Act does not preclude application of the Trees Act in respect of Trees [on the unzoned land].” In the final judgment in those proceedings, Horton C did not make a final finding on this issue, but implied adherence to this preliminary view by making orders for trees on the unzoned land. As I explained at the outset of this paragraph, it was highly unusual for an application under the Trees Act to include trees on unzoned land, and the proceedings revealed other complex issues requiring consideration and determination, with the zoning issue perhaps lost in the noise.

35. I prefer the interpretation of the second arm of s 4(1)(a) of the Trees Act, as taken by Beasley J in SP 58036 No. 1, and in the majority of caselaw considering this issue, whereby the subject zone must have the substantial character of a zone designated within the first arm of s 4(1)(a). This aligns with the interpretation preferred by Counsel for each party in the current proceedings.

The zone does not have the substantial character of a designated zone

36. The trees are on land within WLEP’s Zone C3. The second arm of s 4(1)(a) of the Trees Act requires the Court to have regard to the purpose of the zone. ‘Purpose’ and ‘objective’ are synonyms (see Roget’s Thesaurus, for instance). Therefore, the zone’s objectives, as set out in the WLEP, should be the primary informers of its purpose. As put forward by both Mr Koikas and Ms Nurpuri, permitted uses can further inform the zone’s purpose. I accept Ms Nurpuri’s submission that the requirement for the zone to have the substantial character of a designated zone sets a reasonably high bar when comparing the relevant zones.

37. The nearest designated zone within the WLEP, both in purpose (as put forward by Counsel for each party) and geographically (to the subject land), is Zone R5. For comparison, the two zones’ objectives are set side-by-side in the table below.

| | Zone C3 Environmental Management | Zone R5 Large Lot Residential | | 1 Objectives of zone | • To protect, manage and restore areas with special ecological, scientific, cultural or aesthetic values. • To provide for a limited range of development that does not have an adverse effect on those values. • To encourage the retention of the remaining evidence of significant historic and social values expressed in existing landscape and land use patterns. • To minimise the proliferation of buildings and other structures in these sensitive landscape areas. • To provide for a restricted range of development and land use activities that provide for rural settlement, sustainable agriculture, other types of economic and employment development, recreation and community amenity in identified drinking water catchment areas. • To protect significant agricultural resources (soil, water and vegetation) in recognition of their value to Wingecarribee’s longer term economic sustainability. | • 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 provide a restricted range of opportunities for employment development and community facilities and services that do not unreasonably or significantly detract from— (a) the primary residential function, character and amenity of the neighbourhood, and (b) the quality of the natural and built environments. |

38. To my mind, based on the two zones’ objectives, Zone C3 does not have the substantial character of Zone R5. Zone C3’s objectives focus on protecting values – and not just any values, but special values – such as ecological, scientific, cultural or aesthetic values; minimising built form; providing for rural settlement and sustainable agriculture; and protecting agricultural resources. The gist of it seems to be to allow economic activity and development, including agriculture, in a fashion that does not adversely impact special environmental and cultural values.

39. The objectives of Zone R5, on the other hand, focus on providing for residential development, albeit in a manner that minimises impacts to environmental and aesthetic values. Most tellingly, Zone R5’s final objective notes (with my emphasis) “…the primary residential function, character and amenity of the neighbourhood.” Where Zone R5’s primary function is residential, Zone C3’s most certainly is not. Zone C3’s primary function seems to be restricting settlement and development so as to maintain the other special values that, together, provide the area’s defining character and amenity.

40. It seems important that one reads each zones’ objectives as a whole, as I have tried to do above, rather than cherry-picking a few overlapping or similar phrases from each. Even where certain objectives of each zone might ‘align neatly’, as Mr Koikas submitted, providing for ‘a restricted range of development’ that provides for ‘rural settlement’ (Zone C3) differs significantly from providing ‘residential housing in a rural setting’ (Zone R5).

41. If the objectives alone establish each zone’s purpose, then Zone C3 of the WLEP does not have the substantial character of Zone R5, nor of any of the designated zones.

42. The permissible development and uses, with and without consent, and prohibited development in each zone can then shine light into any remaining shadows. The permitted and prohibited types of development and uses in each zone are set side-by-side in the table below.

| | Zone C3 Environmental Management | Zone R5 Large Lot Residential | | 2 Permitted without consent | Environmental protection works; Extensive agriculture; Home-based child care; Home occupations | Environmental protection works; Home-based child care; Home occupations | | 3 Permitted with consent | Agricultural produce industries; Agritourism; Airstrips; Bed and breakfast accommodation; Cellar door premises; Community facilities; Dairies (pasture-based); Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Environmental facilities; Farm buildings; Farm stay accommodation; Flood mitigation works; Health consulting rooms; Helipads; Home businesses; Horticulture; Information and education facilities; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Recreation areas; Recreation facilities (outdoor); Roads; Roadside stalls; Secondary dwellings; Signage; Tank-based aquaculture; Viticulture; Water storage facilities | Bed and breakfast accommodation; Dual occupancies (attached); Dwelling houses; Group homes; Oyster aquaculture; Pond-based aquaculture; Roads; Tank-based aquaculture; Any other development not specified in item 2 or 4 | | 4 Prohibited | Industries; Local distribution premises; Multi dwelling housing; Residential flat buildings; Retail premises; Seniors housing; Service stations; Warehouse or distribution centres; Any other development not specified in item 2 or 3 | Agriculture; Air transport facilities; Amusement centres; Animal boarding or training establishments; Camping grounds; Car parks; Caravan parks; Cemeteries; Commercial premises; Correctional centres; Crematoria; Depots; Eco-tourist facilities; Electricity generating works; Entertainment facilities; Exhibition villages; Extractive industries; Farm buildings; Forestry; Freight transport facilities; Function centres; Heavy industrial storage establishments; Home occupations (sex services); Industrial retail outlets; Industrial training facilities; Industries; Information and education facilities; Local distribution premises; Mortuaries; Open cut mining; Passenger transport facilities; Recreation facilities (indoor); Recreation facilities (major); Registered clubs; Research stations; Residential accommodation; Restricted premises; Rural industries; Service stations; Sewage treatment plants; Sex services premises; Storage premises; Tourist and visitor accommodation; Transport depots; Vehicle body repair workshops; Vehicle repair stations; Veterinary hospitals; Waste or resource management facilities; Water recreation structures; Water supply systems; Wharf or boating facilities; Wholesale supplies |

43. Of course, it is possible to find particular types of permitted or prohibited development common to both zones but, again, it is important to look at these lists as a whole, and particularly how they promote and facilitate the objectives of each zone. It seems natural that some residential uses are permitted in each zone. But to my mind, the contrasting objectives (and therefore the purpose) of the two zones are demonstrated by ‘Extensive agriculture’ being perm**itted without consent, and ‘Agricultural produce industries’ permitted with consent, in Zone C3, while ‘Agriculture’ is prohibited in Zone R5. As I have already noted above, ‘sustainable agriculture’ and ‘agricultural resources’ are both mentioned within Zone C3’s objectives. ‘Farm buildings’ and ‘Eco-tourist facilities’ are permissible with consent in Zone C3, but both are prohibited in Zone R5. Differences such as these further demonstrate the contrasting characters of Zone C3 and Zone R5, with Zone C3’s purpose to conserve environmental and cultural values along with agricultural resources, while providing for agricultural production, whereas Zone R5’s primary purpose is to provide for residential use.

44. Even the similarities between permissible uses identified by Mr Koikas fade considerably once other controls within the WLEP are considered, as pointed out by Ms Nurpuri (see [24], [25] above). I also note that some of the similarities regarding prohibited development identified by Mr Koikas do not appear to be mirrored in the lists shown in the table above. The tables comprehensively and specifically list each type of development and land use, such that the absence of any one development type or land use within a zone’s table suggests that it is captured by ‘Any other development not specified in item x or y’. Therefore, several types of residential development prohibited in Zone C3, including but not limited to ‘Multi dwelling housing’, ‘Residential flat buildings’, and ‘Dual occupancies (detached)’, would appear to be permitted with consent in Zone R5.

45. The inclusion of Zone C3 within the meaning of ‘residential zone’ at, and only for, cl 5.18 of the WLEP does not give Zone C3 the character of a residential zone.

46. For these reasons, I find that, having regard to its purpose, WLEP’s Zone C3 does not have the substantial character of a designated zone.

47. And finally, should the alternative interpretation of s 4(1)(a) of the Trees Act be applied, I find that the respondent’s land does not have the substantial character of a designated zone. As Ms Nurpuri submitted, the character of No. 277 is more rural and agricultural than residential, with values both environmental and aesthetic aligning with values identified within Zone C3’s objectives.

Reasonable effort to reach agreement

48. 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.

Evidence

49. Correspondence attached to Ms Wilson’s affidavit of 7 November 2025 shows that she raised several issues with the respondent, including the obstruction of sunlight caused by the trees, along with others that appear to have little relevance to the trees, such as water run-off from a dam. Despite promises from the director of the respondent to meet in person, no such meeting took place. Written responses from the respondent’s legal representative demonstrated the respondent’s refusal to accept any of Ms Wilson’s claims and its refusal to take any action in response.

Submissions

50. Mr Koikas submitted that the applicant made a reasonable effort to reach agreement. The respondent accepts that Ms Wilson made a reasonable effort to reach agreement in her Pt 2A application in relation to trees obstructing sunlight, but disputes that Ms Wilson made an effort in her Pt 2 application to reach any agreement on replacing the fence along the common boundaries shared by the parties. The parties discussed the fence after Ms Wilson commenced these proceedings but were unable to reach any agreement. However, Ms Nurpuri submitted that the applicant must make a reasonable effort prior to making an application to the Court. She said Ms Wilson did not show the respondent any damage caused by the trees prior to making her application.

Findings

51. Although it is preferable that an applicant tries, to a reasonable extent, to resolve their issues over neighbouring trees with the tree owner before taking legal action, the wording at s 10(1)(a) of the Trees Act simply prevents the Court making an order under Pt 2 unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree owner. Preston CJ discussed this section of the Trees Act at [191]-[196] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (‘Robson’), saying at [194]:

“Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.”

52. Ms Wilson made a reasonable effort to reach agreement on all key issues of this dispute prior to the final hearing. I am satisfied that Ms Wilson made a reasonable effort to reach agreement and that she gave the required notice of the application under both Pt 2 and Pt 2A of the Trees Act.

Whether trees have damaged the fence (Pt 2 application)

53. For the Court to make orders under the Pt 2 application, I must first be satisfied that the trees, in this case, have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property: s 10(2)(a) of the Trees Act. The applicant’s property of concern is the dividing fence, ownership of which is shared by the parties.

Evidence

54. Ms Wilson’s application forms and affidavits include various photographs of sections of the dividing fence. At the outset of the onsite hearing, we walked the length of Ms Wilson’s northern boundary and part of her eastern boundary – generally the boundary adjacent to the respondent’s cypress trees. Mr Koikas and Ms Nurpuri pointed out various features, including:

55. The nature of the fence – aged, timber posts with alternating timber spacers supporting wire mesh, other than one section of fence north of Ms Wilson’s dwelling where the fence is topped by a timber rail

56. The extent of the cypress trees’ branches extending across the common boundary, with some lower branches contacting the fence

57. The presence of understorey plants among the cypress, including pittosporum, also with branches contacting the fence

58. The condition of the trees, including areas where the trees’ foliage has died

59. The location where two cypress trees have fallen over, adjacent to tree T109, exposing the limited root plate of T109 to its northeast.

60. The survey plan dated 8 July 2024 by CEH Consulting Pty Ltd (in Exhibit B) shows 139 trees: 117 trees along Ms Wilson’s northern boundary (T1–T118, but with no tree numbered T78) and 22 trees along her eastern boundary (T119–T139, including two separate trees numbered T134). Trees T1–T118 average 14 metres in height, while trees T119–T139 average 11 metres in height. The trees are planted at roughly regular spacings, mostly in a single row but with one section (T23–T77) in a double row.

61. Mr Beisler, the consulting arborist engaged by Ms Wilson, identified the trees as Leyland cypress (Cupressus × leylandii) and allocated them a significance rating of ‘medium’ using IACA’s STARS methodology (explained in his report).

62. My observations confirmed the trees’ species, heights and locations described above.

63. Although Ms Wilson’s Pt 2 application sought fencing orders but no orders for tree pruning or removal, the Court granted leave during the hearing for the application to be amended – Ms Wilson seeks an order for the respondent to remove tree T109 because it is likely to fall onto her property in the near future, damaging the dividing fence.

The applicant’s submissions

59. The applicant says that even minor damage caused by the trees to the applicant’s property – in this case the dividing fence – enlivens the Court’s jurisdiction at s 10(2) of the Trees Act. Mr Koikas pointed out, here and there, branches of the respondent’s cypress trees that are resting on the fence’s wire, or have rubbed on the wire, causing it to stretch or sag. Orders can therefore be made pursuant to s 9 of the Trees Act to remedy or restrain the damage or to prevent further damage.

60. Mr Koikas suggested that, despite the common law right of abatement, Ms Wilson might require Council’s consent to prune overhanging branches, which in turn might require the respondent to lodge or consent to an application for tree works, making for an onerous process.

61. Mr Koikas submitted that T109 is likely to fall onto the dividing fence in the near future. Two adjacent trees have fallen, exposing T109’s limited root plate to its northeast and leaving T109 more exposed to northerly winds. Past events of overflow from the respondent’s dam may have contributed to the failure of trees adjacent to T109.

The respondent’s submissions

62. The respondent disputes that its trees have damaged, or are likely to damage, the fence. Ms Nurpuri pointed out that the fence is old and degraded, its condition due to its age and weathering. She asked the Court to note areas where branches of the understorey’s pittosporum were pushing against the fence. Those plants are not the subject of the application. Most cypress branches extending beyond the boundary are higher than the fence. The applicant can prune overhanging branches should she wish, as per her common law right of abatement.

63. Ms Nurpuri submitted that nothing indicates T109 is likely to fail in the near future. She said there is no evidence that dam overflow or irrigation issues had any effect on trees near T109 or any other trees.

Findings

64. Ms Wilson claims in her Pt 2 application that trees have damaged the fence. At s 10(2)(a) of the Trees Act, the Court “…must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property…”

65. The fence’s general condition, which is generally poor, is mostly due to its age and weathering. Nevertheless, a few cypress branches have caused minor damage to the fence’s wire. As Mr Koikas said, this enables the Court to make orders despite only a few trees causing damage, the damage being minor, and trees not being the principal cause of damage. In these proceedings, s 10(2)(a) of the Trees Act only requires that a tree concerned has caused damage to the applicant’s property: see [178]-[180] of Robson.

66. Pursuant to s 9 of the Trees Act, the Court could make orders that would remedy fence damage caused by the trees and would prevent the trees causing further damage to the fence. Ms Wilson does not seek orders for tree removal in her Pt 2 application, other than for the removal of T109. Were it not for the orders sought under the Dividing Fences Act, considered below, I would make no orders for repairing the few sections of the dividing fence where cypress branches have caused minor damage, as that would do little to improve the fence’s overall condition or function.

67. With the benefit of observations made during the site hearing, I accept that T109 is likely to fall onto the dividing fence in the near future. Its root plate, limited by the proximity of other trees’ root plates, is now exposed on its north-eastern side. Tree stability relies on a combination of root anchorage and soil adhesion, and some of the soil supporting T109 was lost with the uplifted root plates of the two fallen trees. As a result of competition for sunlight with the now-fallen trees, most of T109’s branches are to the tree’s south, overhanging the dividing fence and the applicant’s property, such that the weight of its crown is biased significantly to the south. T109 is now exposed to greater wind forces from the northeast, having lost the protection of the adjacent canopy of the two fallen trees. For these reasons, I find that T109 is likely to fall and cause damage to the applicant’s property in the near future.

68. The benefits T109 provides are not significant, either environmentally or socially. Ms Wilson has not contributed to the likelihood of damage. Having considered matters at s 12 of the Trees Act, I find that it would be appropriate for the respondent to remove T109 to prevent damage.

Whether the entire dividing fence should be replaced

69. In certain circumstances, this Court has jurisdiction to hear and determine matters arising under the Dividing Fences Act. For this to occur, the Court must find that a tree that is the subject of an application under Pt 2 of the Trees Act has caused, is causing, or is likely in the near future to cause, damage to a dividing fence (or that the tree is part of a dividing fence and meets the test at s 10(2) of the Trees Act): see s 13A of the Dividing Fences Act.

70. In the current proceedings, Ms Wilson has made an application under Pt 2 of the Trees Act, and I have found that some trees that are the subject of the application have caused damage to the dividing fence shared by the parties. Ms Wilson seeks fencing orders pursuant to the Dividing Fences Act. The parties wish for the fencing matter to be considered and determined in the current proceedings. The Pt 2 orders Ms Wilson sought in her original application (in Exhibit A) were:

1. Within 30 days of the date of these orders, the Applicant is to obtain three independent quotes from suitably qualified and experienced fencing contractors to:

a. erect a sufficient dividing fence comprised of 1.2 metre steel or timber posts with Waratah Stocktite dog proof mesh and straining posts as necessary at the corner and each end of the fence along the common boundary of 277 Fountaindale Road, Robertson (Lot 4 in DP263561) with 299 Fountaindale Road, Robertson (Lot 1 in DP263561).

2. Following receipt of the quotes in Order 1, the Applicant is to provide the three independent quotes to the Respondent.

3. The Applicant is to select, from the three quotes, a suitably qualified and experienced fencing contractor to erect the dividing fence in Order 1.

4. Within 28 days' of receipt of the quote in Order 1, the Respondent is to pay the Applicant half the costs of the fencing contractor selected to erect the dividing fence in Order 1.

5. Following receipt of the payment, the Applicant is to engage the fencing contractor to erect the dividing fence in Order 1.

6. Such further orders as the Court sees fit.

The applicant’s submissions

71. The applicant says the dividing fence shared by the parties is no longer fit for purpose and should be replaced, other than (as amended during the hearing) a section of fence topped by timber (roughly extending from T43 to T81).

72. Ms Wilson has horses on her property. The fence’s poor condition is not sufficient to prevent their escape. The cypress hedges, which were planted long after the dividing fence was constructed, are insufficient to prevent horses escaping due to gaps between trees. Ms Wilson has had to erect sections of electric fencing parallel to the dividing fence to prevent horses escaping. A sufficient dividing fence would be similar to other boundary fences on her property, as described in the fencing orders she seeks.

73. Because the fence’s condition is mostly due to general age-related dilapidation, it would be reasonable for the applicant and respondent to share equally the cost of its replacement.

74. Making fencing orders in these proceedings for the entire dividing fence shared by the parties would avoid the need to continue the fencing proceedings in NCAT.

The respondent’s submissions

75. The respondent submitted that the fence does not require replacement. Ms Nurpuri suggested that, if the fence is no longer fit for purpose, then the trees in the hedges would provide a sufficient dividing fence, or the combination of existing fence and hedges would suffice. Along the applicant’s eastern boundary, thick vegetation to the south of the eastern hedge would provide a sufficient dividing fence. That the hedges came after the fence is irrelevant. The Court is not required to order the fence’s replacement.

76. Ms Nurpuri submitted that, if orders are made for replacing the fence, it should be simple post-and-wire, not mesh, with the cost shared equally by the parties. The applicant should pay for anything beyond that.

Findings

77. The entire dividing fence along the parties’ common boundaries is no longer fit for purpose. It may once have been suitable, but it can no longer be relied upon to secure horses on the applicant’s property, unlike fences on other boundaries of her property.

78. Pursuant to definitions at s 3 of the Dividing Fences Act, a ‘dividing fence’ separates “…the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.” And, ‘fence’ can mean a structure or a hedge or some other barrier. To that extent, the hedges of cypress trees, although situated on the respondent’s land, might be considered a dividing fence.

79. What might be considered a sufficient dividing fence is covered by s 4 of the Dividing Fences Act:

4 Determination as to “sufficient dividing fence”

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

(a) the existing dividing fence (if any),

(b) the purposes for which the adjoining lands are used or intended to be used,

(c) the privacy or other concerns of the adjoining land owners,

(d) the kind of dividing fence usual in the locality,

(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

(g) in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act.

80. Considering the existing fence, other boundary fences at No. 299, and the use of No. 299 for horses, a sufficient dividing fence would be a new wire mesh fence similar to the one described in the applicant’s proposed orders. Neither the existing boundary fence nor the respondent’s cypress hedges, nor even a combination of both, form a sufficient dividing fence. It would be appropriate for the dividing fence along the shared boundaries to be replaced by a new fence.

81. Liability for fencing work, relevant to these proceedings, is considered at ss 6–8 of the Dividing Fences Act.

6 General principle—liability for fencing work

(1) An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) This section applies whether or not a dividing fence already separates the adjoining lands.

7 Contribution as between adjoining owners—generally

(1) Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

(2) An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.

(3) An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.

8 Contribution where negligent or deliberate act

(1) Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.

(2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.

(3) In determining an adjoining owner’s liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.

82. It follows that the respondent is required to contribute to fencing work to provide a sufficient dividing fence. The adjoining owners would ordinarily contribute equally to the fencing works. The applicant seeks nothing more than what is required for a sufficient dividing fence. The need to replace the fence arises from its age and general deterioration over time, rather than from any negligent or deliberate act of either party or another person. Therefore, with consideration of ss 6–8 of the Dividing Fences Act, it would be appropriate for the applicant and the respondent to contribute equally to the fencing works.

83. For the existing fence to be removed and replaced by a new fence, low branches of cypress trees and understorey plants that are close to the common boundary, interfering with the fence or the area required for fencing work, will require clearing. Fencing work, as defined at s 3 of the Dividing Fences Act, includes the “…preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands…”. Therefore, any tree pruning or other vegetation clearing required for the fence’s removal and replacement forms part of the fencing work and its cost would be shared equally by the parties.

84. It would be appropriate for the parties to contribute equally to a new dividing fence along their shared common boundary, other than the section topped by timber, in a manner similar to that set out in the applicant’s proposed Pt 2 orders.

Whether trees are severely obstructing sunlight (Pt 2A application)

85. Ms Wilson’s Pt 2A application originally sought orders for the removal of all 139 cypress trees forming hedges on the respondent’s property. During the hearing, the Court granted leave for the applicant to amend the orders sought under the Pt 2A application as follows: the respondent to remove trees T30 to T83 or, failing that, to prune and maintain trees T30 to T83 at a height no greater than 7 metres. Ms Wilson also seeks an order restricting the height of any replacement hedge near the common boundary. Mr Koikas clarified that the applicant does not press the issue of a view obstruction caused by the trees.

Evidence

86. It is not disputed that all of the cypress trees are planted so as to form hedges and rise to at least 2.5 metres above the ground: s 14A(1) of the Trees Act. Mr Beisler described them as forming three hedges: two hedges along Ms Wilson’s northern boundary (the northern hedges) separated by a gap between T61 and T62; and a third hedge formed by trees T119 to T139 along Ms Wilson’s eastern boundary.

87. The joint expert report of Mr Williamson and Mr O’Toole includes comprehensive shadow diagrams, agreed by them to be accurate. Mr Williamson and Mr O’Toole wrote on p 4 of their report: “The experts agree that trees T41 to T83 obstruct sunlight to the windows in the dwelling for the 3 hours between 11am and 2pm when calculated on the 21st June.” Then on p 5 they wrote: “The experts agree that the trimming of trees T41 to T83 to a height of 7m when measured from their base would provide adequate solar access to the windows in the dwelling.”

88. Regarding the trees’ potential height at maturity, Mr Beisler wrote on p 10 of his report: “Research advises the mature height of the species can range from 10-25m. In the experience of this author the species frequently exceeds 12 metres, rarely >20m. However, Charlene Ferguson; Team Leader, Tree Management Wingecarribee Shire Council, advises that she has observed the species >35m.” According to Ms Wilson, the trees were planted in 2002, so they are a little over 23 years old. Parts of the hedges have been pruned at least once to reduce the trees’ height.

89. Regarding the impact of pruning, Mr Beisler recommended against pruning to a height of 1.5–1.8 metres, as was put to him, instead concluding (on p 11): “…the subject trees could be subjected to selective tip pruning (essentially hedging), to reduce the trees [sic] height, however, should not exceed 5000mm, and should not involve the lopping of the lower stems.” I take this to mean he recommends against reducing the trees’ height by more than 5 metres, so a tree 14 metres tall could be reduced to a height of 9 metres but no shorter.

The applicant’s submissions

90. Mr Koikas submitted that the Court can order, as it has done in other cases, pruning or removal of trees in a hedge beyond those found to severely obstruct sunlight to the applicant’s windows. The experts found that trees T41–T83 should be removed, but as trees further west grow taller, they too will obstruct winter afternoon sunlight to Ms Wilson’s windows. Therefore, orders should be made for trees T30 to T83.

91. Despite Mr Williamson and Mr O’Toole agreeing that reducing the trees’ height to 7 metres would sufficiently restore sunlight to Ms Wilson’s windows, Mr Koikas submitted that removing trees T30 to T83 should be preferred for several reasons. Mr Beisler recommended against reducing the trees’ height by more than 5 metres, whereas Mr Williamson and Mr O’Toole did not consider the impacts that pruning would have on the trees. Mr Beisler thought that the larger wounds left by more severe pruning would increase the likelihood of cypress canker, which is possibly already present in the hedges, or other pathogens adversely affecting the trees. Removing the trees would negate the need for regular pruning to maintain trees at the reduced height. A section of hedge between trees T61 and T62 was removed some time ago by a previous owner of the respondent’s property, so removing trees T30 to T83 would simply widen the existing gap between the two hedges along the northern boundary.

92. Ms Wilson’s dwelling sits lower than the respondent’s land, so low shrubs planted near the boundary could provide privacy screening between the properties.

The respondent’s submissions

93. Ms Nurpuri submitted that the evidence of the experts, Mr Williamson and Mr O’Toole, should be relied upon. Reducing trees T41 to T83 to a height of 7 metres would sufficiently restore sunlight to Ms Wilson’s windows, so there is no reason to make orders beyond that. The Court can only consider sunlight obstruction to the windows of Ms Wilson’s dwelling (s 14E(2)(a)(i) of the Trees Act), not to grass or other parts of her property.

94. Ms Nurpuri submitted that hedges such as these are iconic in the area, contributing to the district’s local character. They are a key feature of the respondent’s land. Pruning the trees would retain privacy screening that would be lost through tree removal.

Findings

95. The experts’ joint report found trees T41 to T83 obstruct sunlight to the applicant’s windows during the midwinter afternoon. With the importance of winter sunlight in mind, I find this obstruction is severe, so orders can be made under Pt 2A of the Trees Act: s 14E(2)(a)(i).

96. I have considered the matters at s 14F of the Trees Act. The trees are close to, and overhang, the common boundary. Cypress hedges are common in the area, contributing to local character, but are not necessarily iconic. I observed occasional new plantings of similar hedges in the district, but I also noticed native plantings becoming more common, as seems to be preferred by Council. In Council’s letter to the Court, Ms Ferguson wrote:

“The Council administers this matter in accordance with its current Development Control Plan (DCP), which is publicly available on the Council’s website. Under the DCP, any tree exceeding a height of six (6) metres requires Council consent prior to any pruning or removal activities.

In considering potential resolutions to disputes of this nature, the Council would assess applications under the following options:

1. Partial removal of trees within the hedgerow where they adversely impact the liveability of the neighbouring property; or

2. Pruning of the hedge to a maintainable height that improves solar access to the neighbouring property; or

3. Total removal of the trees, with replacement by preferred native species endemic to the Robertson local plant community type.”

97. Council has not received an application to prune or remove any of the cypress trees. Ms Ferguson further explained: “Should an application be lodged, the Council will undertake a thorough assessment in accordance with relevant legislation, policies, and the DCP provisions to determine the most appropriate course of action.”

98. The trees contribute to the amenity of the respondent’s land and surrounding properties, and to the broader public amenity. They provide ecosystem services, including shading and cooling, and some habitat, but they are exotic trees that do not contribute significantly to the local ecosystem. Ms Wilson’s interests in remedying the sunlight obstruction outweigh any reasons to avoid interfering with the trees: s 14E(2)(b) of the Trees Act.

99. Mr Williamson and Mr O’Toole considered the sunlight obstruction caused by the trees at their current heights, approximately 11–14 metres. The trees have the potential to reach at least 25 metres in height. They grow quickly in this environment. I accept, as the applicant submitted, that trees T30 to T40 are also likely to severely obstruct sunlight before too long. The Court can make orders at s 14D of the Trees Act to remedy, restrain or prevent a severe sunlight obstruction. It seems appropriate to include trees T30 to T40 in any orders made for T41 to T83.

100. Reducing the trees to a height of 7 metres would have negative impacts on their health and their amenity. Ongoing pruning of the trees to maintain them at that height would be onerous. As per the applicant’s submissions, removing the trees is to be preferred to pruning them.

101. To maintain or restore privacy and other benefits, it would be appropriate for the respondent to undertake replacement plantings of shorter vegetation further from the dividing fence, roughly from T29 to T84. As per Council’s letter, replacement plantings should be of suitable species that are endemic to the local vegetation community.

Conclusions

102. The respondent’s land is zoned C3 Environmental Management within the WLEP. This is not a zone designated at s 4(1)(a) of the Trees Act. For reasons set out in this judgment, I find that WLEP’s Zone C3 does not have the substantial character of a designated zone. Therefore, pursuant to s 4(1), the Trees Act does not apply to trees that are the subject of Ms Wilson’s application, and no orders can be made.

103. Had I found differently on that issue, and the Trees Act applies to the trees, I find that the orders sought by Ms Wilson are appropriate to the situation, and I would otherwise have reason to make orders along those lines. Under Ms Wilson’s Pt 2 application, I would make orders for the respondent to remove tree T109, and for the dividing fence along the entirety of their common boundaries to be replaced by a fence as described in her proposed orders, with the cost of fencing works shared equally by the parties. Under Ms Wilson’s Pt 2A application, I would make orders for the respondent to remove trees T30 to T83 and to plant replacement vegetation as described above at [101]. But such orders cannot be made where the Trees Act does not apply to the trees.

Orders

104. The Court orders:

105. The Pt 2 application is refused.

106. The Pt 2A application is refused.

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

D Galwey

Acting Commissioner of the Court

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