Ceeney v Rutter

[2025] NSWLEC 1175

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ceeney v Rutter [2025] NSWLEC 1175

Hearing dates:

12 February 2025

Date of orders:

12 February 2025

Decision date:

12 February 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is upheld to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondents are to remove, or engage and pay for a suitably experienced contractor to remove, all oleander trees along their rear boundary.

(3) Within 30 days of the date of these orders, and then annually in March thereafter, the respondents, or a suitably experienced contractor they engage at their expense, are to prune all palm trees along their rear boundary to remove all dead and dying fronds along with any developing fruit.

(4) The applicant is to allow any access required to his property on reasonable notice and at reasonable times of the day for the works in Orders (2) and (3).

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether trees have damaged or are likely to damage property – Pt 2A application – neighbouring hedge – whether the trees are planted so as to form a hedge

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 6, 7, 9, 10, 12, 14A, 14B, 14E,

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Ross Douglas Ceeney (Applicant)
Gary Alan Rutter (First Respondent)
Linda Joyce Rutter (Second Respondent)

Representation:

Counsel:
R Ceeney (Self-represented) (Applicant)
No appearance (First and Second Respondents)

File Number(s):

2024/395980

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Carmel and Ross Ceeney live at their residential property in Tumbi Umbi. Behind their property, on the neighbouring property belonging to Linda and Gary Rutter, vegetation grows along the common boundary. The Ceeneys have asked the Rutters to address various issues related to the vegetation, including: debris falling onto their property, the poisonous nature of some of the plants, vermin attracted to their property by the vegetation, potential damage and injury from falling palm fronds, roots in their stormwater pipe and garden, and the vegetation’s obstruction of sunlight and views.

2. The Rutters (the respondents) have not responded to the Ceeneys’ requests. Mr Ceeney (the applicant) has applied to the Court seeking orders that will deal with these issues. His application is made pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

3. The hearing took place onsite, allowing the Court to observe the trees and both properties. Mr Ceeney was self-represented. The Rutters’ son, Perry Rutter, attended but was not nominated as an agent for his parents, who did not attend. The matter was heard ex parte.

The trees

4. The vegetation along the Rutters’ back boundary includes about 20 trees of mixed species: 12 cocos palms, four oleanders, a sweet pittosporum, a blueberry ash and two cypresses. The trees vary in height from approximately 5 metres tall, such as the shorter oleanders, to approximately 10 metres tall, such as the taller palms. The cypresses are behind the property to the Ceeneys’ east, not their own property. While Mr Ceeney raised issues that affect other property owners, the Court can only make orders in these proceedings for trees affecting his own property.

Reasonable effort

5. Mr Ceeney made numerous efforts to contact the Rutters and received at least one response via the Rutters’ solicitor, but could not resolve his complaints. I am satisfied that he made a reasonable effort to reach agreement with the Rutters and gave the required notice of the application: s 10(1) and s 14E(1) of the Trees Act.

Part 2A application

6. Mr Ceeney says the trees obstruct sunlight and views to his property and seeks orders to remedy this. Part 2A of the Trees Act only applies to trees that are planted so as to form hedges and rise to more than 2.5 metres in height: s 14A(1). The vegetation along the Rutters’ rear boundary is not hedge-like: it does not have the characteristics of a hedge and does not appear to have been planted with the intention to form a hedge. It is a mixed planting of trees and smaller plants in a garden bed along the boundary. The palms are in three distinct separate clumps. The oleanders are separate from each other. The blueberry ash is a single tree. The pittosporum was most likely self-sown.

7. Because I find the trees are not planted so as to form a hedge, Pt 2A of the Trees Act does not apply to these trees and no orders can be made in response to that part of Mr Ceeney’s application.

Part 2 application

8. The taller trees significantly overhang the Ceeneys’ property, dropping debris onto the roofs of their house and shed and onto their paths and garden. Debris such as leaves, twigs and fruit dropped by trees, if it results in property damage due to lack of maintenance, is ordinarily not a reason for the Court to make orders: see the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20].

9. Vermin attracted by the trees might be a nuisance to the Ceeneys, but vermin are not trees and, pursuant to s 9(1) of the Trees Act, the Court can only make orders Pt 2 “…to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree[s]…”:

10. Large, heavy palm fronds fall onto the roof of the Ceeneys’ shed and dwelling. To date, this might have been a nuisance, but has not caused damage. However, the palms are now reaching a height such that falling fronds might damage the roof of the Ceeneys’ shed and hothouse, or the tiled roof of their dwelling, within the near future: s 10(2)(a) of the Trees Act. As per the principle in Yang v Scerri [2007] NSWLEC 592 at [14], the near future here is considered as the next 12 months. This gives the Court a reason to make orders to prevent damage, which can be readily achieved by the annual removal of dead and dying palm fronds and any fruit that is present. Such pruning would not adversely impact the trees or the environment in any way.

11. Mr Ceeney stated that he has over-engineered both his stormwater drains and concrete paved areas, so roots are unlikely to damage these parts of his property in the near future. Along the back of his property, and the adjacent properties to each side, a larger stormwater drain runs close to and parallel with the Ceeneys’ rear boundary, close to the subject trees. Mr Ceeney showed the Court a large pit that provides access to this pipe, where roots could be seen growing into the pit and stormwater pipes connected to the pit. To date, Mr Ceeney has used herbicide to prevent their growth into the pipes. Having recently realised that this flows into the nearby waterway, he said he will no longer be doing this. The roots will grow quickly in this favourable environment and are likely to obstruct these pipes in the near future. Mr Ceeney collected root samples and took them to John Ford, a botanist who specialises in root identification. Mr Ford identified the roots as oleander roots, with some palm roots also present. Mr Ceeney expressed concern regarding the vigorous nature of the oleander roots and their potential to block the pipe.

12. Based on the evidence provided, and my own observations during the hearing, I am satisfied that oleander roots are likely in the near future to obstruct and cause damage to pipes on the Ceeneys’ property. The Court may make orders, on this element of the application, to prevent damage.

13. The oleanders provide little environmental or landscape value; they are widely regarded as undesirable weeds with toxic parts. Their removal would not result in significant loss to the Rutters or to the environment.

Conclusion

14. The trees that are the subject of these proceedings are not planted so as to form a hedge. It follows that Pt 2A of the Trees Act does not apply to the trees and the Court cannot make orders on that element of Mr Ceeney’s application.

15. Two elements of Mr Ceeney’s application under Pt 2 of the Trees Act give the Court reasons to make orders to prevent neighbouring trees causing damage to his property. I have considered the matters at s 12 of the Trees Act and find that the orders made below are appropriate to the circumstances.

16. Pursuant to s 6(3) of the Trees Act, the Rutters will not require council consent to carry out the tree works ordered below.

Orders

17. The Court orders:

1. The application is upheld to the extent of the following orders.

2. Within 30 days of the date of these orders, the respondents are to remove, or engage and pay for a suitably experienced contractor to remove, all oleander trees along their rear boundary.

3. Within 30 days of the date of these orders, and then annually in March thereafter, the respondents, or a suitably experienced contractor they engage at their expense, are to prune all palm trees along their rear boundary to remove all dead and dying fronds along with any developing fruit. 

4. The applicant is to allow any access required to his property on reasonable notice and at reasonable times of the day for the works in Orders (2) and (3).

D Galwey

Acting Commissioner of the Court

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Amendments

25 March 2025 - Amended the Class category from Class 1 to Class 2.

Decision last updated: 25 March 2025