Gray v Hamilton

[2025] NSWLEC 1539

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gray v Hamilton [2025] NSWLEC 1539

Hearing dates:

21 July 2025

Date of orders:

21 July 2025

Decision date:

21 July 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage – application refused – Pt 2A application – obstruction of sunlight – sunlight refers to direct sunlight – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 9, 10, 12, 14A, 14B, 14D, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Drewett v Best [2010] NSWLEC 1305

Freeman v Dillon [2012] NSWLEC 1057

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Category:

Principal judgment

Parties:

Linda Gray (Applicant)
Michael Hamilton (First Respondent)
Robyn Hamilton (Second Respondent)

Representation:

Counsel:
A Dewell (Solicitor) (Applicant)
M Hamilton (Self-represented) (First Respondent)
R Hamilton (Self-represented) (Second Respondent)

Solicitors:
McPhee Kelshaw (Applicant)

File Number(s):

2025/154317

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Linda Gray and Michael and Robyn Hamilton are neighbours in Springwood, in the Blue Mountains. Ms Gray has applied to the Court seeking orders for the Hamiltons to maintain trees growing on their property along the common boundary.

2. The hearing took place onsite, allowing me to observe the trees and both properties. Mr Dewell represented Ms Gray; the Hamiltons were self-represented. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties. Ms Gray provided a report by Chantelle Brackenridge Hughes, arborist of Treeism Arboricultural Services; the Hamiltons provided a report by Tom Hare, arborist of Truth About Trees.

Framework for this decision

3. Ms Gray applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). She claims that the Hamiltons’ trees are likely to damage her property and that their bamboo hedge obstructs sunlight to her dwelling windows. The trees are on land adjoining her land. The orders she seek are orders the Court can make at ss 9 and 14D of the Trees Act.

4. Relevant issues to be determined in these proceedings are:

• Whether the applicant has made a reasonable effort to reach agreement with the respondents and given the required notice of the application (ss 10(1)(a) and 14E(1)(a) of the Trees Act).

• Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person (s 10(2)).

• How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made under Pt 2.

• Whether trees are severely obstructing sunlight…