Background
Justin Lucas purchased his property in Caringbah South in 2006 and has occupied it since 2011, enjoying water views of Burraneer Bay and bushland from an arc spanning southeast to south. Since 2018, Elizabeth Buck has owned and occupied a battle-axe shaped property on the downslope, whose boundary previously adjoined Mr Lucas’s land. Previous owners of Ms Buck’s property had planted a row of Fiddlewood trees along the common boundary, forming a hedge that Mr Lucas said had been well maintained at about 2.5 metres for the ten years prior to Ms Buck’s ownership. He contended that Ms Buck had ceased regular maintenance, allowing the hedge to grow to approximately eight metres, at which height it completely blocked his bay views.
Mr Lucas filed his application on 26 September 2025 under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking orders for twice-yearly pruning to 2.5 metres. A complication arose when, on 29 October 2025 — after the application was filed but before the 27 January 2026 hearing — Mr Lucas’s property was subdivided pursuant to a registered strata plan, creating a new lot (Lot 2) that now occupied the land formerly sharing a boundary with Ms Buck. This meant the hedge trees were no longer on “adjoining land” as required by s 14B of the Act at the time of the hearing. Both parties appeared self-represented.
Ms Buck disputed the severity of the obstruction, argued the adjacency requirement was not met, and raised privacy concerns, noting that a 2.5-metre hedge height would allow direct oversight into numerous rooms of her home. She had recently pruned the hedge to approximately 3.5 metres and proposed that height as a compromise. She also denied ever having discussed the hedge with Mr Lucas prior to receiving the filed application in her letterbox.
The Court’s Holding
Acting Commissioner Douglas held that jurisdiction was established on the basis that the trees satisfied the adjacency requirement of s 14B at the date the application was received by the Court (26 September 2025), notwithstanding the subsequent subdivision. The Court confirmed that the relevant date for assessing jurisdiction is the date of the application, not the date of the hearing. The applicant was also found to have satisfied the procedural requirements of s 14C (notice) and s 14E(1)(a) (reasonable effort to reach agreement), the latter applying a flexible standard drawn from Robson v Leischke [2008] NSWLEC 152 that permits efforts at agreement to be made at any point before determination.
On the substantive question of severe view obstruction, the Court acknowledged that the hedge, having been pruned to about 3.5 metres shortly before the hearing, was causing only minor obstruction at the time of the site visit. Nevertheless, applying the reasoning from Steber v Job [2019] NSWLEC 1308, the Court found that where a fast-growing hedge had previously caused severe obstruction and would foreseeably do so again without ongoing intervention, that was sufficient to satisfy s 14E(2)(a). The Court was satisfied that when the Fiddlewood hedge had grown to approximately eight metres in the past, it had severely obstructed the applicant’s views of Burraneer Bay — a water view given significant weight under Tenacity Consulting v Warringah [2004] NSWLEC 140.
Balancing the applicant’s interest in unobstructed water views against the respondent’s privacy, landscaping, and amenity interests under ss 14E(2)(b) and 14F, the Court ordered the hedge to be pruned to no more than three metres above raised garden bed soil level within 45 days, and then maintained at that height by Ms Buck at her expense during June and December of each year going forward. The Court declined to order pruning to the applicant’s proposed 2.5 metres, preferring the slightly higher three-metre limit as a better balance of the competing interests.
Key Takeaways
- Jurisdiction under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 is assessed as at the date of the application, not the date of the hearing — a post-application subdivision that removed the common boundary did not defeat the court’s power to make orders.
- Where a high hedge has previously caused severe view obstruction and will foreseeably do so again due to its rapid growth habit, a court may find the s 14E(2)(a) threshold met even if the hedge has been pruned back before the hearing (Steber v Job applied).
- The “reasonable effort to reach agreement” requirement under s 14E(1)(a) is flexible: it does not require pre-application contact and can be satisfied at any time before the Court determines the application.
- Water views of a bay or similar land-water interface are accorded significant weight in the balancing exercise, consistent with Tenacity Consulting v Warringah.
- Courts will craft ongoing maintenance orders — here, biannual pruning in June and December — to prevent recurrence of obstruction rather than address only the immediate state of the hedge.
Why It Matters
This decision clarifies an important jurisdictional point for hedge disputes in New South Wales: a landowner who files a Part 2A application before subdividing their property does not lose the benefit of that application simply because the subdivision later removes the common boundary. Practitioners advising clients in similar situations should note that the timing of applications relative to any pending land dealings can be decisive, and that court proceedings may be worth commencing promptly to preserve jurisdictional standing.
The case also reinforces the utility of the Steber v Job rationale for applicants whose views are temporarily restored by a respondent’s pre-hearing pruning: the Court will look to the hedge’s history and growth habit rather than its condition on the day of inspection. Combined with the biannual maintenance orders imposed here, the decision offers a practical template for managing fast-growing hedges such as Fiddlewood that can rapidly re-establish severe obstruction if left unmanaged.