Pricken v Burgess - [2025] NSWLEC 1776

Land and Environment Court

New South Wales

Case Name:	Pricken v Burgess
Medium Neutral Citation:	[2025] NSWLEC 1776
Hearing Date(s):	28 July 2025
Date of Orders:	31 October 2025
Decision Date:	31 October 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune T1 and T3 to at least 600mm below the eastern and western ends of the southern side of the applicants’ dwelling, including stems that are likely to slap against the applicants’ eaves and gutters during strong winds. (2) During the last 14 days of April 2026 and during the last 14 days of November 2026, and during the same period of April and November of each subsequent year, the respondents, at their expense, shall repeat the pruning in accordance with Order (1). (3) The pruning works shall be completed by an Australian Qualification Framework (AQF) level 3 qualified arborist or horticulturist who holds all appropriate insurances. (4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours. (5) Should access to the applicants’ property be required to undertake the pruning works or to remove or poison residual stems of T4, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — balancing views and privacy — minor near future damage likely — apprehension of fence and structural damage in future
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Pt 2, Pt 2A, ss 7, 10, 12, 14A, 14B, 14C, 14D, 14E, Trees (Disputes Between Neighbours) Regulation 2024
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Welsh v Radford [2023] NSWLEC 1095 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Johannes Pricken (First Applicant) Sonja Szary (Second Applicant) Joel Burgess (First Respondent) Daisy Poiner (Second Respondent)
Representation:	J Pricken (Applicants) J Burgess (Respondents)
File Number(s):	2025/177967
Publication Restriction:	Nil

JUDGMENT

Background

COMMISSIONER: Since 2001, Mr Pricken and Ms Szary, the applicants, have owned and occupied an elevated property in Newport, which commands bushland and ocean views. The applicants share a common side boundary with Mr Burgess and Ms Poiner, the respondents, who occupied their property in August 2020 with their two young children. The common boundary runs from east to west and the applicants’ property is north of the respondents’ land.
In their ‘Position Statement and…

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 Pricken v Burgess

Details

AGLC: Pricken v Burgess [2025] NSWLEC 1776
Case: [2025] NSWLEC 1776
Decision Date: 31 October 2025

CaseChat Overview and Summary

The Pricken v Burgess case involved the applicants, Pricken, and the respondents, Burgess, in a dispute concerning the pruning of trees on the Burgess property that were affecting the Pricken property. The applicants sought relief from the Supreme Court of New South Wales, alleging that the trees on the respondents' property were causing damage to their property by slapping against their eaves and gutters during strong winds. The applicants sought an order for the respondents to prune the trees to a specified height and to undertake regular maintenance of the trees. The respondents argued that the trees were not a nuisance and that the applicants' request for regular pruning was unreasonable.

The court had to determine whether the trees constituted a nuisance and whether the applicants' request for regular pruning was reasonable. The court considered the principles of nuisance law, including the foreseeability of harm, the balance of public interest, and the reasonableness of the applicants' request. The court also considered the effect of the trees on the applicants' property, the extent of the damage caused, and the feasibility of the applicants' request. The court held that the trees constituted a nuisance and that the applicants' request for regular pruning was reasonable.

The court ordered the respondents to prune the trees to a specified height and to undertake regular maintenance of the trees. The court also specified the qualifications required for the person undertaking the pruning works, the hours during which the works could be undertaken, and the conditions under which access to the applicants' property would be granted. The court's decision provides guidance on the application of nuisance law to disputes involving trees and the extent to which regular maintenance of trees may be required to prevent harm to neighbouring properties.

Orders

Orders of the court

The Court orders that:

(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune T1 and T3 to at least 600mm below the eastern and western ends of the southern side of the applicants’ dwelling, including stems that are likely to slap against the applicants’ eaves and gutters during strong winds.

(2) During the last 14 days of April 2026 and during the last 14 days of November 2026, and during the same period of April and November of each subsequent year, the respondents, at their expense, shall repeat the pruning in accordance with Order (1).

(3) The pruning works shall be completed by an Australian Qualification Framework (AQF) level 3 qualified arborist or horticulturist who holds all appropriate insurances.

(4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours.

(5) Should access to the applicants’ property be required to undertake the pruning works or to remove or poison residual stems of T4, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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