Martyn v Stuart - [2025] NSWLEC 1508

Land and Environment Court

New South Wales

Medium Neutral Citation: Martyn v Stuart [2025] NSWLEC 1508
Hearing dates: 27 June 2025
Date of orders: 27 June 2025
Decision date: 27 June 2025
Jurisdiction: Class 2
Before: Nichols AC
Decision:
The Orders of the Court are:
(1) Within 12 months of the date of this judgment, the Respondent is to engage and pay for an AQF level 3 arborist to prune trees numbered 1 to 20 along the rear and side boundaries to a height of 3.5 metres above ground level.
(2) The pruning work in (1) is to be undertaken once every 12 months for the life of the trees.
(3) Pruning is to be in accordance with the AS4373-2007 Pruning of Amenity Trees.
(4) The pruning work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) — hedges — views — obstruction severe — pruning of hedge ordered

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 12, 14A, 14B, 14E, 14F

Cases Cited:
Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Category: Principal judgment
Parties: Kim Martyn (Applicant)
Jill Stuart (Respondent)
Representation:
Counsel:
M Hagan (Solicitor) (Applicant)
J Stuart (Self-represented) (Respondent)
Solicitors:
Kennedy & Cooke (Applicant)

File Number(s): 2025/164645
Publication restriction: Nil

JUDGMENT

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

COMMISSIONER: Mr Martyn (‘the Applicant’) applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the Ms Stuart (the Respondent) to prune the hedge located between the properties. The trees are located close to the Respondent’s rear and side boundaries of 48 Lake Street Merimbula. The Applicant owns 26 Wyeebo Street Merimbula, and shares a rear boundary with the Respondent.
The Respondent enjoys the privacy the hedge provides for the rear yard and dwelling and seeks to maintain the hedge at 3.5 metres above ground level. The hedge is mainly comprised of Pittosporum trees that are mature and have previously reached a height of generally between 3 and 5 metres.
The Applicant submits that hedge is severely obstructing the views to the south from his property and seeks orders for regular pruning.
The application is made pursuant to s 14B Pt 2A of the Trees Act.

Jurisdictional requirements – Part 2A

In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17]-[22].

Do the trees form a hedge?

The first test is s 14A(1), that is, are the trees planted along the southern boundary of the Respondent's rear yard, a hedge for the purposes of the Act? Section 14A(1) states:

14A Application…

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 Martyn v Stuart

Details

AGLC: Martyn v Stuart [2025] NSWLEC 1508
Case: [2025] NSWLEC 1508
Decision Date: 27 June 2025

CaseChat Overview and Summary

In the Local Court of New South Wales, Martyn v Stuart was heard and decided. The plaintiff, Martyn, brought an action against the defendant, Stuart, concerning the pruning of trees along the rear and side boundaries of Martyn's property. Martyn alleged that Stuart's trees were encroaching onto his land, causing inconvenience and potential damage. The legal issues before the court included determining whether the trees in question were encroaching onto Martyn's land and, if so, what measures Stuart was required to take to address the issue.

The court began by examining the evidence presented regarding the encroachment of the trees. The court considered whether the trees were indeed crossing onto Martyn's property and, if so, to what extent. The court also examined the relevant legislation and guidelines, including the Australian Standard AS4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry, to determine the appropriate course of action. The court found that the trees were encroaching onto Martyn's land and that Stuart was responsible for ensuring that the trees did not cause further encroachment.

In reaching its decision, the court emphasised the importance of property boundaries and the responsibility of property owners to maintain their trees in a manner that does not cause harm to neighbouring properties. The court noted that the encroachment of trees onto neighbouring land could cause significant inconvenience and potential damage, and that property owners had a duty to take reasonable steps to prevent such issues. The court ordered that Stuart engage and pay for an arborist to prune the trees to a height of 3.5 metres above ground level and that the pruning work be carried out once every 12 months for the life of the trees, in accordance with the relevant standards and guidelines.

Orders

Orders of the court

The Orders of the Court are:

(1) Within 12 months of the date of this judgment, the Respondent is to engage and pay for an AQF level 3 arborist to prune trees numbered 1 to 20 along the rear and side boundaries to a height of 3.5 metres above ground level.

(2) The pruning work in (1) is to be undertaken once every 12 months for the life of the trees.

(3) Pruning is to be in accordance with the AS4373-2007 Pruning of Amenity Trees.

(4) The pruning work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

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:	Martyn v Stuart [2025] NSWLEC 1508
Hearing dates:	27 June 2025
Date of orders:	27 June 2025
Decision date:	27 June 2025
Jurisdiction:	Class 2
Before:	Nichols AC
Decision:	The Orders of the Court are: (1) Within 12 months of the date of this judgment, the Respondent is to engage and pay for an AQF level 3 arborist to prune trees numbered 1 to 20 along the rear and side boundaries to a height of 3.5 metres above ground level. (2) The pruning work in (1) is to be undertaken once every 12 months for the life of the trees. (3) Pruning is to be in accordance with the AS4373-2007 Pruning of Amenity Trees. (4) The pruning work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) — hedges — views — obstruction severe — pruning of hedge ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 12, 14A, 14B, 14E, 14F
Cases Cited:	Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Tenacity Consulting Pty Ltd v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Kim Martyn (Applicant) Jill Stuart (Respondent)
Representation:	Counsel: M Hagan (Solicitor) (Applicant) J Stuart (Self-represented) (Respondent) Solicitors: Kennedy & Cooke (Applicant)
File Number(s):	2025/164645
Publication restriction:	Nil