Hoare v Colby - [2025] NSWLEC 1264

Land and Environment Court

New South Wales

Medium Neutral Citation: Hoare v Colby [2025] NSWLEC 1264
Hearing dates: 21 March 2025
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application to remove the trees is refused.
(2)   For as long as Trees 1 and 2 remain, the respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist or horticulturist to prune the trees during the month of April each year, beginning April 2025, as follows:
(a)   Remove any branches within 200 mm of the adjoining building’s brick wall, but avoiding the removal of any branches of Tree 1 (crape myrtle) that are greater than 60 mm in diameter;
(b)   Reduce branches above the adjoining building by no more than 20% total crown mass of each tree.
(3)   The works in Order (2) must be done in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4)   The respondents are to give the applicant, or the occupant of the applicant’s property, 7 days’ notice of each occurrence of the works in Order (2).
(5)   The applicant and the occupants of the applicant’s property are to allow all access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day.
(6)   The exhibits are retained.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – whether tree removal is required

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Hendry v Olsson [2010] NSWLEC 1302
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment
Parties: Glen Hoare (Applicant)
Martin Colby (First Respondent)
Heather Colby (Second Respondent)
Representation: Counsel:
G Hoare (Self-represented) (Applicant)
M Colby (Self-represented) (First Respondent)
H Colby (Self-represented) (Second Respondent)

File Number(s): 2025/10167
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Heather and Martin Colby live at their residential property in Kendall. Plantings along their western boundary include two mature trees that have clearly grown there for some decades:

Tree 1: Crape myrtle (Lagerstroemia indica) approximately 8 metres tall with a stem diameter of 50 cm;

Tree 2: Pink bottlebrush (possibly Callistemon citrinus, syn. Melaleuca citrina) approximately 10 metres tall with two stems each approximately 30 cm in diameter.

In or around 2018, a building was constructed on the neighbouring property to the west with a brick wall on or close to the common boundary. Glen Hoare, an owner of…

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 Hoare v Colby

Details

AGLC: Hoare v Colby [2025] NSWLEC 1264
Case: [2025] NSWLEC 1264
Decision Date: 21 March 2025

CaseChat Overview and Summary

The case of Hoare v Colby was heard in the Supreme Court of New South Wales. The dispute centred around the maintenance and pruning of trees on the respondents' property, which were encroaching on the applicant's adjoining property. The applicant sought an order for the removal of the trees, arguing that they were a nuisance and a hazard. The respondents opposed the removal and instead sought to manage the trees through regular pruning.

The court was required to determine whether the trees constituted a nuisance and if so, what the appropriate remedy would be. The court had to consider the relevant statutory guidelines for tree pruning, the potential impact of the trees on the applicant's property, and the rights of the respondents to maintain trees on their property. The court also needed to balance the interests of both parties in a manner that was fair and equitable.

In its judgment, the court found that the trees did constitute a nuisance but were not a sufficient ground for removal. The court noted the aesthetic and environmental benefits of the trees and the respondents' right to maintain them. However, the court determined that regular pruning was necessary to mitigate the nuisance. The court ordered the respondents to engage a qualified arborist to prune the trees annually, ensuring that the pruning adhered to safety and industry standards. The court also stipulated the specific pruning requirements, including the notice period and access provisions for the pruning works.

The court's orders included the refusal of the applicant's application to remove the trees, detailed instructions for the respondents to prune the trees annually, and provisions for notice and access. The court also retained the exhibits for future reference.

Orders

Orders of the court

The Court orders:

(1) The application to remove the trees is refused.

(2) For as long as Trees 1 and 2 remain, the respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist or horticulturist to prune the trees during the month of April each year, beginning April 2025, as follows:

(a) Remove any branches within 200 mm of the adjoining building’s brick wall, but avoiding the removal of any branches of Tree 1 (crape myrtle) that are greater than 60 mm in diameter;

(b) Reduce branches above the adjoining building by no more than 20% total crown mass of each tree.

(3) The works in Order (2) must be done in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicant, or the occupant of the applicant’s property, 7 days’ notice of each occurrence of the works in Order (2).

(5) The applicant and the occupants of the applicant’s property are to allow all access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day.

(6) The exhibits are retained.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hoare v Colby [2025] NSWLEC 1264
Hearing dates:	21 March 2025
Date of orders:	21 March 2025
Decision date:	21 March 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove the trees is refused. (2) For as long as Trees 1 and 2 remain, the respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist or horticulturist to prune the trees during the month of April each year, beginning April 2025, as follows: (a) Remove any branches within 200 mm of the adjoining building’s brick wall, but avoiding the removal of any branches of Tree 1 (crape myrtle) that are greater than 60 mm in diameter; (b) Reduce branches above the adjoining building by no more than 20% total crown mass of each tree. (3) The works in Order (2) must be done in accordance with AS4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) The respondents are to give the applicant, or the occupant of the applicant’s property, 7 days’ notice of each occurrence of the works in Order (2). (5) The applicant and the occupants of the applicant’s property are to allow all access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day. (6) The exhibits are retained.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – risk of damage or injury – whether tree removal is required
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hendry v Olsson [2010] NSWLEC 1302 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007) Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)
Category:	Principal judgment
Parties:	Glen Hoare (Applicant) Martin Colby (First Respondent) Heather Colby (Second Respondent)
Representation:	Counsel: G Hoare (Self-represented) (Applicant) M Colby (Self-represented) (First Respondent) H Colby (Self-represented) (Second Respondent)
File Number(s):	2025/10167
Publication restriction:	Nil