Ford v Steinmetz

[2025] NSWLEC 1385

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ford v Steinmetz [2025] NSWLEC 1385

Hearing dates:

10 February 2025

Date of orders:

10 February 2025

Decision date:

10 February 2025

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – likelihood of future damage claimed – jurisdiction does not apply to risk of injury from undertaking pruning – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, s 7, 8, 9, 10, 11, 12, 13, 14, Pt 2A, s 14A, 14B, 14C, 14D, 14E, 14F, 14G, 14H, 14I

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Moore v Tebbutt [2025] NSWLEC 1360

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Lake Macquarie City Council, Tree pruning and removal assessment tool

Category:

Principal judgment

Parties:

Gordon Leslie Ford (Applicant)
Vicky May Steinmetz (Respondent)

Representation:

Counsel:
G Ford (Self-represented) (Applicant)
V Steinmetz (Self-represented) (Respondent)

File Number(s):

2024/448824

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Vicky May Steinmetz (the respondent) has a Lilly Pilly hedge growing along a common back boundary shared with her neighbour, Gordon Leslie Ford (the applicant). The parties’ properties are in Mount Hutton in the Lake Macquarie Local Government Area (LGA) and Mr Ford’s land is located roughly south of Ms Steinmetz’s property. The shared boundary is about 11.5m long and Mr Ford also shares a common boundary about 5.5m long with the respondent’s west side neighbour.

2. The shared fence was about 1.8m high and Mr Ford’s property was about 0.4m lower than Ms Steinmetz’s land. Mr Ford’s back yard was fairly wide but shallow and a rectangular metal awning was covering a deck at the rear of his two-storey dwelling. The shared fence was at an angle, rather than parallel to Mr Ford’s dwelling. Near the trees, the fence was about 1-1.5m from the northeastern corner of the awning and about 2-2.5m away at the awning’s northwestern corner. The hedge was located at the western end of the common boundary. It was about 4-5m long and there was a similar Lilly Pilly hedge along the fence between the respondent and her west side neighbour.

3. Mr Ford claimed the trees had been growing above the fence for the previous two years, which required him to prune them. Prior to this, they had been maintained by the respondent. Photographs in Mr Ford’s Tree Dispute Claim Details (Form H) showed the trees were healthy and had reached around 3.5-4.5m tall with foliage overhanging the back yard of Ms Steinmetz’s western side neighbour by 1-2m. Mr Ford claimed the trees were 3m higher than the fence.

4. During 2024, while Ms Steinmetz was away for extended periods, the property was occupied by Mr Berg, her partner. Ms Steinmetz and Mr Berg valued shade provided by the trees and privacy screening from oversight through Mr Ford’s upstairs window.

5. Included within Ms Steinmetz’s ‘Respondent’s evidence and alternative Orders’ (evidence) of 30 January 2025, was the following “record of events” that Mr Berg compiled about the hedge: During April 2024, Mr Berg noticed the hedge had been pruned from the applicant’s property back to the common boundary, without impacting its height or privacy and shading attributes. However, when he returned from holidays on 2 May 2024, Mr Berg said he saw a “sizeable amount of the rear hedge missing”, and by 11 June 2024, he contended it had been pruned to near fence height. Mr Berg claimed an unpleasant altercation occurred on 20 June 2024, when he approached Mr Ford while Mr Ford was undertaking further pruning beyond the common boundary. Mr Berg claimed that Mr Ford had made no contact with either the respondent or him prior to this incident, and nor had they interacted since.

6. Mr Ford tried to organise mediation through a Community Justice Centre (CJC) and his application included copies of letters from the CJC to the respondent, dated 9 May 2024, and 20 May 2024. The CJC advised Mr Ford that no reply was received, but Ms Steinmetz’s evidence of 30 January 2025 included an email to the CJC that noted Ms Steinmetz had advised the CJC on 27 June 2024, that she was willing to mediate.

7. Nonetheless, the parties reached an impasse, and Mr Ford made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking ongoing pruning of the trees along the common boundary, at the respondent’s expense, to below the height of the dividing fence. Additionally, Mr Ford claimed compensation of $449.00, comprising the $299.00 cost of the application and miscellaneous application preparation expenses of $150.00.

8. Ms Steinmetz’s sought alternative orders for maintenance of the trees at a height of 1m above the top of the common fence and 200mm inside the fence line, and for Mr Ford to confine his pruning to overhanging foliage, rather than within the respondent’s property.

9. The final hearing took place onsite, allowing the Court to inspect the trees and their likely impact on Mr Ford’s property. Both parties were self-represented. I rely on my own arboricultural expertise in making the decision.

Jurisdictional framework

10. Some weeks after the hearing, via the Court Registrar, Mr Ford sent me a letter which asked for three issues to be addressed. Though this was unusual, I determined the issues posed by Mr Ford were unlikely to provoke questions of procedural fairness or bias and addressing them was likely to provide some clarity for both parties.

11. Considering the first question, “Why I could not rely on Part 2” of the Trees Act, it appeared that Mr Ford had confused Pt 2 and Pt 2A from my oral summary that followed the hearing. Mr Ford can rely on Pt 2 of the Trees Act, but he cannot rely on the sections from Pt 2A, which he incorporated into his argument to justify his case. I will expand on this in the following paragraphs, and address Mr Ford’s issues (2) and (3) under ‘Submissions’, below at [23].

12. Mr Ford’s Application (Form C) proposed orders for Pt 2 and his Tree Dispute Claim Details Form (H) was the correct form for claims of “Damage to property or injury to a person”. Therefore, Mr Ford correctly applied to the Court pursuant to s 7 of Pt 2 of the Trees Act. The orders that Mr Ford proposed are orders the Court can make at s 9 of the Trees Act, provided the relevant jurisdictional tests detailed below at [16], are satisfied.

13. Pt 2 is found at s 7-14 of the Trees Act, under the title, “Court orders—trees that cause or are likely to cause damage or injury”. Pt 2A is found at s 14A-14I of the Trees Act, under the title, “Court orders—high hedges that obstruct sunlight or views”. Pt 2A only deals with hedges obstructing sunlight to dwelling windows or obstructing views from a dwelling. Pt 2A is not concerned with damage or injury due to trees. The Tree Dispute Claim Details form for Pt 2A is Form G, which is distinctly separate to Form H for Pt 2 of the Trees Act.

14. Mr Ford did not make an additional application under Pt 2A of the Trees Act. Therefore, he cannot use or rely on the sections from Pt 2A which he referred to in mounting his argument. Mr Ford referred to s 14F(a)-(c), but s 14F(b) and s 14F(c) cannot be used for Pt 2 applications; these provisions only relate to “hedges that obstruct sunlight or views”, under Pt 2A of the Trees Act, and require lodgement of a separate Pt 2A application form.

15. Consequently, “whether the trees existed prior to (Mr Ford’s) dwelling” (at s 14F(b)), and “whether the trees grew to a height of 2.5m or more during the period that the applicant has owned (or occupied) his property” (at s 14F(c)), have no relevance or bearing on the Court’s consideration of this Pt 2 application. However, “the location of the trees concerned in relation to the boundary” is considered, because it arises in both Pt 2, at s 12(a) and in Pt 2A, at s 14F(a).

16. Relevant issues to be determined in these Pt 2 proceedings are:

1. Has Mr Ford made a reasonable effort to reach agreement with Ms Steinmetz, to engage s 10(1)(a) of the Trees Act? Next, has Mr Ford given the required notice of the application, at s 10(1)(b) of the Trees Act?

2. Can the Court be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to Mr Ford’s property, or are likely to cause injury to any person? These are the key tests at s 10(2) of the Trees Act.

3. If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?

Reasonable effort to reach agreement

17. In Form H, at Attachment G, Mr Ford included a copy of an undated letter from Ms Steinmetz which said, “you have excessively trimmed branches from a tree/ hedge to the rear of my property”, without consent. The letter included copies of Lake Macquarie City Council (the Council) assessment tools for ‘Tree pruning and removal’ (assessment tools), and the Trees Act, which Mr Ford included in his subsequent application to the Court. The letter noted that the pruning exceeded both the boundary line and the 10% of the trees foliage allowed without permission from the Council, and requested Mr Ford cease pruning the trees beyond the boundary line.

18. Mr Ford did not challenge the respondent’s contention that he made no contact or request for permission with the respondent or Mr Berg prior to his pruning of 7 April, 2 May, or 11 June 2024. Mr Berg claimed that in their initial contact at the pruning of 20 June 2024, Mr Ford said he was “forced to cut this hedge at 80 years old”. From Mr Ford’s handwritten notes on Ms Steinmetz’s letter, it appeared that Mr Ford initially contacted a CJC on 8 May 2024. His application included copies of mediation requests sent from the CJC to Ms Steinmetz, on 9, and 20 May 2024.

19. Clearly, Mr Ford’s repeated pruning without permission was a less-than-ideal start to his interaction with Ms Steinmetz. The parties had strong views on the issues in contention and the nature of their relationship did not allow for reasonable negotiation. Therefore, any further discussion between the parties was unlikely to resolve the dispute.

20. Nonetheless, the Trees Act does not prescribe the applicant’s conduct, nor set a time limit on the applicant’s reasonable effort to reach agreement. Such effort may continue until the hearing and right up to when the Court decides the outcome. Both parties actively engaged in the hearing. In this context, I am satisfied that Mr Ford made a reasonable effort to reach agreement with Ms Steinmetz, such that s 10(1)(a) of the Trees Act is engaged.

21. Mr Ford also provided evidence of service of the application documents to the respondent and to Council and the timeframe set down by the Court has allowed for the required notice of the application.

Submissions

The applicant’s position

22. At the hearing, the hedge comprised about four Lilly Pillies which were clear of the common boundary and about 2.2m tall. Mr Ford said there were no trees present when he occupied his property in 2008, and that the trees were likely to grow to 5m tall, and were therefore unsuitable. He claimed they were too big for the location, but they would not grow across the boundary if they were maintained at or below the height of the fence. Mr Ford contended that there was no reason for them to grow above the fence.

23. Issue (2) in Mr Ford’s letter to the Court was, “the fact that between 21 January 2025 and 10 February 2025, the hedge was different from photographs attached to my application”. Issue (3) was that the trees were reduced by 2.4m from their height shown in the application photographs. All branches that had previously overhung Ms Steinmetz’s west side neighbours by 2.0m (as in the photographs) had been removed. Mr Ford appeared to be inferring that I must have missed these facts or not appreciated the size and condition of the hedge prior to pruning. I will respond below in ‘Findings’.

24. Mr Ford’s complaints about the trees covered nuisance, damage and injury. At question 4 of Form H, Mr Ford claimed the trees would overhang his metal awning by more than 1m if the trees were allowed to reach their full height of 5m. He said the trees were thus likely to cause damage to his gutters and awning and, therefore, they had to be trimmed to prevent this. Erroneously citing s 14F(c), Mr Ford said the trees should be pruned to 2.4m to prevent damage. Mr Ford was 82 years old and claimed his pruning of the trees was likely to cause him injury. He said he could not afford to get help.

The respondent’s position

25. The respondent had provided Mr Ford with copies of the Council assessment tools and the Trees Act. The CJC had requested mediation with Ms Steinmetz on behalf of Mr Ford in letters of 9 and 20 May 2024, but nonetheless, Mr Ford heavily pruned the height of the tree within the respondent’s property on 11 June and 20 June 2024. Ms Steinmetz provided evidence of contacting the CJC on 27 June 2024 and agreeing to mediation with Mr Ford.

26. Although family circumstances had prevented the respondent from prioritising hedge maintenance in 2023-24, she was now maintaining the hedge’s height and keeping it clear of the boundary. Ms Steinmetz did not want the hedge pruned at fence height because she valued the privacy screening and shading that the trees provided when they were at least 1m above the fence. Ms Steinmetz acknowledged that some branches from pruning near the boundary may fall into Mr Ford's yard, but with Mr Ford’s permission, she could retrieve them, or he could throw them back over the fence.

27. Ms Steinmetz contended she had seen no evidence of damage and that she did not anticipate any damage occurring in the near future. She said Mr Ford’s claim of injury from pruning was not reasonable because the trees had been pruned and were being maintained. Thus, there was no pruning Mr Ford needed to undertake. Ms Steinmetz reiterated the privacy benefit the hedge provided from oversight through Mr Ford’s upstairs window.

The applicant’s conclusion

28. Mr Ford said that the window facing the respondent’s property is a bathroom that is not used and so they would not overview into the respondent’s windows or yard. He said he would have preferred to negotiate a settlement but there been no response to the letters from the CJC, so he made the application under the Trees Act in October 2024.

29. The applicant contended that overhanging foliage could not be trimmed from the respondent’s land and that the hedge will grow even if it was trimmed back to 200mm from the fence. Mr Ford submitted that his wife, who suffered from Alzheimer’s disease, was likely to trip over while trying to tidy debris that fell over the fence during pruning.

Findings

Damage

30. I concur with the respondent’s claim that there was no evidence of past or current damage. Indeed, Mr Ford referred only to potential damage. He noted damage to his gutters and awning that may occur “if the trees were allowed to reach their full height of 5m” and if foliage overhung his metal awning by more than 1m. Regardless, such damage was a mere possibility and was unlikely in the short term, even if the trees had not been pruned and foliage brushed the roof or gutters.

31. Both parties noted that Ms Steinmetz had kept the trees pruned for many years prior to the recent 1–2-year period when other issues required prioritisation. however, she had now recommenced pruning so the likelihood of future damage from the trees was minimal.

32. Crucially, the jurisdiction of the Trees Act does not include damage in the distant future. It is limited to damage in the near future, which is generally restricted to the next 12 months, as per the principle established in Yang v Scerri [2007] NSWLEC 592; at [14]. As it was improbable that the trees would cause damage to the applicant’s property over the next 12 months, s 10(2)(a) of the Trees Act is not satisfied. Therefore, the Court cannot make orders to prune the trees on the basis of potential damage.

33. With respect to Mr Ford’s issues, at (2) and (3) of his letter, I had closely examined and considered the size and spread of the trees in the photographs at Attachment B of Form H, before making my decision at the onsite hearing.

34. Firstly, it would be unreasonable for my decision regarding likelihood of near future damage to be based on past circumstances that had been rectified. At the hearing, the trees were no longer as they had been in the photographs. Therefore, the trees former condition was irrelevant because Mr Ford had not submitted any evidence to prove the trees caused past damage to his property, nor proof that the trees were causing damage when the photographs were taken. Based on their growth rate, they may well have grown over the fence line and encroached on Mr Ford’s land in the subsequent 12 months, but I determined they were unlikely to cause damage during that period.

35. Therefore, regardless that the trees had grown to the size shown in the photographs, and even if they appeared as per the photographs at the hearing, without evidence that showed that near future damage was likely, they would not have satisfied s 10(2)(a) of the Trees Act.

36. Mr Ford emphasised the branches in the photographs encroaching by about 2m into the respondent’s side neighbours property, but these branches were irrelevant to the application because damage under the Trees Act only relates to damage to the applicant’s property. I appreciate that Mr Ford may have been illustrating the potential growth rate of this species but there was no need for Mr Ford to be concerned about foliage overhanging the respondent’s neighbour’s land. In any case, this is a modest, medium sized tree species that tolerates pruning and is suitable for the site.

37. Many trees in urban areas overhang common boundaries and encroach on neighbouring properties. In Ku-ring-gai Council LGA on Sydney’s north shore, for example, dense tree canopies often encroach over boundaries and may be 10 - 20m tall. Even in such conditions, if a tree has not caused or is not causing damage, or is unlikely to cause near future damage, there is no power under the Trees Act to prevent trees from growing as and where they will naturally grow. There is no law, per se, requiring a property owner to prevent foliage from their trees growing over boundaries.

38. Leaves, flowers, fruit, and similar light debris that may blow or drop into an applicant’s property from overhanging branches is also not considered to be damage for the purpose of the Trees Act. In addressing this issue, the Court established a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292; at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

39. I acknowledge the difficulties that may arise from Mrs Ford’s Alzheimer’s disease, but as a consequence of this Tree Dispute Principle, there is an expectation that Mr Ford would clear pruning debris that may fall from the trees into his yard, or procure help to do so, especially in light of his rejection of the respondent’s offer to remove the debris. In any case, the quantity of debris is likely to be small.

40. In Moore v Tebbutt [2025] NSWLEC 1360 (Moore), Acting Commissioner Galwey discussed similar circumstances with the following commentary; at [13]-[14]:

“A hedge planted by a landowner near their boundary might also be enjoyed by their neighbour, or it might not. Unless the hedge owner leaves sufficient room between the hedge and the boundary to prune it entirely from within their property, or reaches some agreement for accessing their neighbour’s property, the burden of pruning the face of the hedge along the boundary (the part of the hedge that its owner does not see) falls to the neighbour. And this can be an onerous task. No law requires the hedge owner to prevent the hedge’s branches growing across the boundary. Generally, a neighbour can exercise their common law right of abatement to prune branches back to the boundary, subject to the consent required by any Act including the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

In some proceedings under the Trees Act, where the Court has made orders for landowners to prune hedges, for example to remedy or prevent a view obstruction, the Court has extended those orders to include a requirement that the hedge’s owner also maintains the face of the hedge along the boundary: see Davidson v Bower [2024] NSWLEC 1463 and Lock v Sidoti [2024] NSWLEC 1345. In those cases, the Court found that the circumstances met the tests that allow the Court to make orders, and saw reasons to order maintenance of a hedge’s face along a boundary. The Trees Act does not empower the Court to make orders only on the basis of nuisance caused by overhanging branches or the burden of maintaining them.”

Risk of injury

41. Mr Ford claimed that due to his advanced age, he risked injury whilst pruning the trees as he was unstable. Whilst it is no doubt true that it was risky for Mr Ford to work at height, this is not a risk of injury that engages the jurisdiction. Satisfaction of the Trees Act requires a genuine risk of injury to be caused by the trees. In this case, it was not the trees that caused the risk. The risk here resulted from Mr Ford’s choice to prune the trees, even though such pruning was not essential. Given that Mr Ford displayed a strong desire for the hedge to be pruned, he could have, and arguably should have, approached the respondent and requested pruning. In Moore, Galwey AC considered a similar claim for risk of injury from tree pruning; at [17]:

“The Court does not consider that injury caused to a person by falling while pruning trees equates to injury caused by those trees. Such an injury is caused by the person’s own actions, not by the trees. No orders can be made on this element of the application.”

42. As I was similarly not satisfied that it was the trees that presented a risk of injury to Mr Ford, s 10(2)(b) of the Trees Act is also not engaged. Consequently, s 10(2) of the Trees Act was not satisfied. Thus, the Court has no power to make orders, so the application is refused.

43. Mr Ford claimed compensation for the application fee and miscellaneous costs paid for the preparation of the application. Commissioners do not have the power to award these costs. Such applications require lodgement of a Notice of Motion with the Court, which is heard by a Registrar or a Judge.

Orders

44. The Court orders that:

1. The application is refused.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 28 May 2025