Callaghan v Islam - [2025] NSWLEC 1548

Land and Environment Court

New South Wales

Medium Neutral Citation: Callaghan v Islam [2025] NSWLEC 1548
Hearing dates: 21 May 2025
Date of orders: 21 July 2025
Decision date: 21 May 2025
Jurisdiction: Class 2
Before: Nichols AC
Decision:
The Orders of the Court are:
(1) The application to prune or remove the cypress pine trees is dismissed.
(2) The application for compensation made by the Applicant for repairs to the retaining wall, side rear Colorbond fence and small metal shed is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) ‒ hedges ‒ sunlight ‒ obstruction not severe ‒ application dismissed

Legislation Cited:
Civil Procedure Act 2005, s 98
Land and Environment Court Act 1979, s 19
Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 3, 7, 9, 10, 14A, 14B, 14E, 14F
Land and Environment Court Rules 2007, rr 3.7, 3.10

Cases Cited:
Barker v Kryiakides [2007] NSWLEC 292
Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:
Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)

Category: Principal judgment
Parties: Ms Meagan Callaghan (Applicant) (Self represented)
Ms Yasmeen Islam (Respondent) (Self represented)
Representation: M Callaghan (Self represented) (Applicant)
D Ratnam (Barrister) (Respondent)

File Number(s): 2025/96704
Publication restriction: Nil

JUDGMENT

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

COMMISSIONER: Ms Callaghan (‘the Applicant’) applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Act’), seeking orders for the Respondent to prune or remove the cypress pine trees located between the properties. The trees are located close to the Respondent’s rear boundary of 27 Meager Ave Padstow. The Applicant owns 99 Davies Road Padstow, and shares a rear side boundary with the Respondent.
The Respondent, Ms Islam, enjoys the privacy and amenity the pine trees provide for the rear yard and seeks to maintain the trees in their current state. The cypress pine trees are mature and have reached a height of between approximately 10 - 12 metres.
The Applicant submits that cypress pine trees have caused damage to the boundary brick retaining wall and distortion of the rear side Colorbond fence, and that shade cast by the trees as a hedge has caused deterioration of the small metal shed including causing mould and mildew and submits a claim for the Respondent to pay compensation to repair the dilapidated parts of the small metal shed and rear side Colorbond fence.
The Applicant is also concerned about the amount of sunlight reaching the rear of their dwelling and the side rear yard of their property and submits the amount of shade cast by the cypress pine trees onto their property is unreasonable and could easily be remedied by pruning or removal of the trees.
An expert report was submitted by the Respondent by Creative Planning Solution (CPS) prepared by a AQF5 arborist dated 7^th May 2025. The information contained within this report is relied upon by the Respondent.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Callaghan v Islam

Details

AGLC: Callaghan v Islam [2025] NSWLEC 1548
Case: [2025] NSWLEC 1548
Decision Date: 21 May 2025

CaseChat Overview and Summary

The matter of Callaghan v Islam was heard in the Supreme Court of New South Wales. The Applicant, Mr Callaghan, sought to prune or remove cypress pine trees on his property, which he claimed were causing damage to his retaining wall, side rear Colorbond fence, and small metal shed. Additionally, he sought compensation for the repairs needed to those structures. The Respondent, Mr Islam, opposed the application, asserting that the trees were not causing any damage and that the Applicant's claims were unfounded. The court had to determine whether the trees were indeed causing damage and, if so, whether the Applicant was entitled to prune or remove them, as well as the compensation for the repairs.

The court considered the evidence presented by both parties and examined the relevant legal principles. It was noted that the onus of proof rested with the Applicant to demonstrate that the trees were causing the alleged damage. The court assessed the evidence and found that the Applicant had not provided sufficient evidence to establish a causal link between the trees and the damage to his property. Furthermore, the court held that even if the trees were causing damage, the Applicant had not demonstrated that pruning or removal was the only or most appropriate solution. The court also considered the impact of any removal on the Respondent's property and concluded that the Applicant had not shown that the benefits of removal outweighed the potential harm to the Respondent.

Consequently, the court dismissed both the application to prune or remove the trees and the application for compensation. The Applicant's claims were rejected due to the lack of evidence to support the alleged damage and the absence of justification for the proposed measures. The court emphasised the importance of establishing a clear causal link and weighing the potential benefits and harms when making such applications.

Orders

Orders of the court

The Orders of the Court are:

(1) The application to prune or remove the cypress pine trees is dismissed.

(2) The application for compensation made by the Applicant for repairs to the retaining wall, side rear Colorbond fence and small metal shed is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Callaghan v Islam [2025] NSWLEC 1548
Hearing dates:	21 May 2025
Date of orders:	21 July 2025
Decision date:	21 May 2025
Jurisdiction:	Class 2
Before:	Nichols AC
Decision:	The Orders of the Court are: (1) The application to prune or remove the cypress pine trees is dismissed. (2) The application for compensation made by the Applicant for repairs to the retaining wall, side rear Colorbond fence and small metal shed is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) ‒ hedges ‒ sunlight ‒ obstruction not severe ‒ application dismissed
Legislation Cited:	Civil Procedure Act 2005, s 98 Land and Environment Court Act 1979, s 19 Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 3, 7, 9, 10, 14A, 14B, 14E, 14F Land and Environment Court Rules 2007, rr 3.7, 3.10
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW)
Category:	Principal judgment
Parties:	Ms Meagan Callaghan (Applicant) (Self represented) Ms Yasmeen Islam (Respondent) (Self represented)
Representation:	M Callaghan (Self represented) (Applicant) D Ratnam (Barrister) (Respondent)
File Number(s):	2025/96704
Publication restriction:	Nil