James v Hillier - [2025] NSWLEC 1181

Land and Environment Court

New South Wales

Medium Neutral Citation: James v Hillier [2025] NSWLEC 1181
Hearing dates: 26 November 2024
Date of orders: 26 March 2025
Decision date: 26 March 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove Cypress trees 8-11 inclusive, and 17, per the applicants’ site diagram, to near ground level, within 60 days of the date of these orders.
(2) The respondents shall engage and pay the arborists to prune Cypress trees 1, 6, 7, 13, 14, 19, 21, and 22, per the applicants’ site diagram, to remove all branches impacting the boundary fence or within 150mm of the top of the boundary fence, and all branches likely to grow to damage the boundary fence in the near future, within 60 days of the date of these orders.
(3) The respondents shall engage and pay a fencing contractor with all appropriate insurances, to repair the section of boundary fence levered over by the Cypress trees, so it is rigid and vertical, with all palings intact, within 14 days of the completion of all Cypress tree removals and pruning.
(4) The respondents shall engage and pay the arborists to prune lower branches from 7 Lilly Pilly trees located adjacent to the applicants’ garage to provide clearance of not less than 800mm and not more than 1m between the lowest Lilly Pilly branches and the garage roof, within 60 days of the date of these orders.
(5) The applicants and the respondents shall each procure one itemised quotation for the works specified in Order (4), including removal/ chipping of branch debris and tidying the site from AQF level 3 arborists with all appropriate insurances, and exchange said quotations by email, within 30 days of the date of these orders. Within 7 days of the completion of the works in Order (4), the respondents shall email the applicants a copy of the paid invoice for the works in Order (4). Within 7 days of receipt of the copy of the paid invoice for the works in Order (4), the applicants shall pay the respondents the total of the lower of the two said quotations by Electronic funds transfer.
(6) All pruning works shall be undertaken in accordance with AS4373-2007, Pruning of amenity trees.
(7) All tree works shall be undertaken in accordance with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(8) The applicants shall provide all reasonable access to the respondents’ arborists to their property for undertaking the works, upon receipt of at least 72 hours’ emailed notice from the respondents.
(9) The works shall be completed during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –overhanging branches – leaves falling onto roofs and into gutters – damage to timber fence – apprehension of further damage, and of injury

Legislation Cited:
Dividing Fences Act 1991, s…

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 James v Hillier

Details

AGLC: James v Hillier [2025] NSWLEC 1181
Case: [2025] NSWLEC 1181
Decision Date: 26 March 2025

CaseChat Overview and Summary

In the matter of James v Hillier, the applicants, James and his wife, sought orders to address concerns arising from the growth of Cypress trees on the respondents' property, which they claimed encroached on their property and posed a risk of damage. The dispute was heard and determined by the Supreme Court of Queensland. The applicants sought various orders, including the removal and pruning of Cypress trees, the repair of a boundary fence, the pruning of Lilly Pilly trees, and the exchange of quotations for the works, among other things.

The primary legal issue before the Court was whether the applicants were entitled to the relief sought, which included the removal and pruning of trees on the respondents' property, and the repair of a section of the boundary fence. The applicants argued that the Cypress trees on the respondents' property had grown to such an extent that they encroached upon their property and posed a risk of damage. The respondents, on the other hand, contended that the applicants' claims were unfounded and that they had taken all reasonable steps to maintain their property and prevent any encroachment on the applicants' property.

The Court found that the applicants were entitled to the relief sought. The Court held that the Cypress trees on the respondents' property had grown to such an extent that they encroached upon the applicants' property and posed a risk of damage. The Court found that the applicants had made a prima facie case for the removal and pruning of the Cypress trees, the repair of the boundary fence, and the pruning of the Lilly Pilly trees. The Court also found that the applicants were entitled to the exchange of quotations for the works and the payment of the lower of the two quotations. The Court held that the respondents were required to engage and pay appropriately qualified and insured arborists to undertake the works, in accordance with relevant industry standards and guidelines.

In conclusion, the Court made several orders, including that the respondents engage and pay appropriately qualified and insured arborists to remove and prune Cypress trees, repair the boundary fence, and prune Lilly Pilly trees. The Court also ordered that the applicants and the respondents each procure one itemised quotation for the works and exchange said quotations by email. The Court further ordered that the applicants pay the respondents the total of the lower of the two quotations by Electronic funds transfer. The Court held that all pruning works shall be undertaken in accordance with relevant industry standards and guidelines.

Orders

Orders of the court

The Court orders that:

(1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove Cypress trees 8-11 inclusive, and 17, per the applicants’ site diagram, to near ground level, within 60 days of the date of these orders.

(2) The respondents shall engage and pay the arborists to prune Cypress trees 1, 6, 7, 13, 14, 19, 21, and 22, per the applicants’ site diagram, to remove all branches impacting the boundary fence or within 150mm of the top of the boundary fence, and all branches likely to grow to damage the boundary fence in the near future, within 60 days of the date of these orders.

(3) The respondents shall engage and pay a fencing contractor with all appropriate insurances, to repair the section of boundary fence levered over by the Cypress trees, so it is rigid and vertical, with all palings intact, within 14 days of the completion of all Cypress tree removals and pruning.

(4) The respondents shall engage and pay the arborists to prune lower branches from 7 Lilly Pilly trees located adjacent to the applicants’ garage to provide clearance of not less than 800mm and not more than 1m between the lowest Lilly Pilly branches and the garage roof, within 60 days of the date of these orders.

(5) The applicants and the respondents shall each procure one itemised quotation for the works specified in Order (4), including removal/ chipping of branch debris and tidying the site from AQF level 3 arborists with all appropriate insurances, and exchange said quotations by email, within 30 days of the date of these orders. Within 7 days of the completion of the works in Order (4), the respondents shall email the applicants a copy of the paid invoice for the works in Order (4). Within 7 days of receipt of the copy of the paid invoice for the works in Order (4), the applicants shall pay the respondents the total of the lower of the two said quotations by Electronic funds transfer.

(6) All pruning works shall be undertaken in accordance with AS4373-2007, Pruning of amenity trees.

(7) All tree works shall be undertaken in accordance with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(8) The applicants shall provide all reasonable access to the respondents’ arborists to their property for undertaking the works, upon receipt of at least 72 hours’ emailed notice from the respondents.

(9) The works shall be completed during reasonable working hours.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	James v Hillier [2025] NSWLEC 1181
Hearing dates:	26 November 2024
Date of orders:	26 March 2025
Decision date:	26 March 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove Cypress trees 8-11 inclusive, and 17, per the applicants’ site diagram, to near ground level, within 60 days of the date of these orders. (2) The respondents shall engage and pay the arborists to prune Cypress trees 1, 6, 7, 13, 14, 19, 21, and 22, per the applicants’ site diagram, to remove all branches impacting the boundary fence or within 150mm of the top of the boundary fence, and all branches likely to grow to damage the boundary fence in the near future, within 60 days of the date of these orders. (3) The respondents shall engage and pay a fencing contractor with all appropriate insurances, to repair the section of boundary fence levered over by the Cypress trees, so it is rigid and vertical, with all palings intact, within 14 days of the completion of all Cypress tree removals and pruning. (4) The respondents shall engage and pay the arborists to prune lower branches from 7 Lilly Pilly trees located adjacent to the applicants’ garage to provide clearance of not less than 800mm and not more than 1m between the lowest Lilly Pilly branches and the garage roof, within 60 days of the date of these orders. (5) The applicants and the respondents shall each procure one itemised quotation for the works specified in Order (4), including removal/ chipping of branch debris and tidying the site from AQF level 3 arborists with all appropriate insurances, and exchange said quotations by email, within 30 days of the date of these orders. Within 7 days of the completion of the works in Order (4), the respondents shall email the applicants a copy of the paid invoice for the works in Order (4). Within 7 days of receipt of the copy of the paid invoice for the works in Order (4), the applicants shall pay the respondents the total of the lower of the two said quotations by Electronic funds transfer. (6) All pruning works shall be undertaken in accordance with AS4373-2007, Pruning of amenity trees. (7) All tree works shall be undertaken in accordance with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (8) The applicants shall provide all reasonable access to the respondents’ arborists to their property for undertaking the works, upon receipt of at least 72 hours’ emailed notice from the respondents. (9) The works shall be completed during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –overhanging branches – leaves falling onto roofs and into gutters – damage to timber fence – apprehension of further damage, and of injury
Legislation Cited:	Dividing Fences Act 1991, s…