Background
Denis Daniels and Shirley McLaughlin, owners of a property in Caringbah South, applied under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) concerning trees on Jane Peers’ adjoining property. They sought removal of three cocos palms, alleging falling fronds and fruit, gutter overflows, possible root damage, injury risk, flying-fox nuisance and shade affecting proposed solar panels.
They also sought ongoing pruning of eight Chinese junipers planted in a row along the common boundary. The applicants said the junipers formed a hedge and, if not maintained, obstructed their water view of Port Hacking from their living areas, kitchen and deck. Ms Peers opposed orders, including on the basis that the trees protected privacy.
The Court’s Holding
Acting Commissioner Galwey held that the Act applied despite the respondent’s land being zoned C4 Environmental Living, because that zone had the substantial character of a residential zone. The Court refused Part 2 relief for the palms: the applicants had not established past or likely near-future property damage, or a likely injury risk. Gutter debris, flying-fox activity, shade and the palms’ weed status did not satisfy the statutory threshold.
The Court found that the junipers were planted and grew as a hedge, bringing them within Part 2A. Although recent pruning meant they were not severely obstructing the view at the hearing, the evidence showed they would likely regrow into a severe obstruction if left unmaintained. The applicants’ interest in preventing that obstruction outweighed the reasons against interference, including privacy and tree impacts.
Key Takeaways
- A Part 2 tree order requires proof of actual or likely near-future damage, or likely injury; ordinary falling tree debris and amenity concerns are insufficient.
- Part 2A can support preventive view-protection orders where a hedge is likely to regrow into a severe obstruction.
- The respondent must arrange and pay for annual November pruning of the specified junipers to a maximum height of 4.5 metres, excluding the unpruned easternmost tree.
Why It Matters
The decision distinguishes actionable tree-related damage and injury from non-actionable nuisances such as shade, wildlife activity and routine debris. It also confirms that a court may make forward-looking hedge-maintenance orders even where pruning has temporarily restored the view.
From November 2026, Ms Peers must engage a suitably qualified and insured arborist or landscape contractor each November to carry out the ordered pruning in accordance with the SafeWork NSW 2026 Tree works Code of Practice.