Debate resumed from an earlier hour.

Ms SONIA HORNERY (Wallsend) [10.27 a.m.]: The Trees (Disputes Between Neighbours) Amendment Bill 2010 will amend the 2006 Act to provide a simple, inexpensive and accessible process for resolving neighbour disputes about trees. The cost of making an application to the Land and Environment Court concerning a tree is a comparatively low $197 for individuals or $394 for corporations. People who experience financial hardship, such as pensioners, are able to seek a fee waiver. That is really important. As a former councillor on the Newcastle City Council, I dealt with many disputes concerning trees. One of the concerns people expressed was that they could not afford to pay for legal support in their efforts to have a tree cut down. Moreover, this legislation will mean that there is no need for people to retain the services of a lawyer or an arborist, which also makes the process all the more accessible. That is why the Act has proved to be exceptionally popular. The bill seeks to make the Act even better.

One of the most significant amendments in the bill is that it will give the Land and Environment Court the power to resolve neighbour disputes about high hedges that severely block sunlight or views. When the Law Reform Commission examined tree disputes in its report, "Neighbour and Neighbour Relations", the commission recommended that a remedy should be provided when a person's enjoyment of their property has been severely affected by a neighbour's tree that blocks out sunlight or views. However, that recommendation was not taken up when the Trees (Disputes between Neighbours) Bill was introduced in 2006. At that time, the Government was conscious that the legislation was breaking new ground and considered it preferable to allow some time for assessment of the new legislation before considering if, and how, the scheme might be applied in situations that do not involve damage to property or risk of injury.

In light of the considerable number of submissions addressing this issue in the two-year statutory review of the Act, the Government is moving to address community concerns about neighbours' trees that severely block sunlight or views. However, the new jurisdiction of the court will be limited to the most problematic cases that were the focus of submissions to the review. That is, high, denser hedges on adjoining properties that are wall like, in effect, and severely restrict sunlight to windows or views from dwellings. Neighbourhood disputes over these sorts of features are becoming increasingly common, and there have even been reports of residents growing "spite" hedges to deliberately block a neighbour's view.

For the first time, neighbours whose sunlight or view has been severely impacted by a high hedge will be able to apply to the court for relief. However, it is important to note that these new laws will not create a right to a view or a right to sunlight. The court will balance the competing rights of neighbours to enjoy their property considering a range of factors including privacy, shade and heritage values. The importance of maintaining the existence and health of urban vegetation will also be a key consideration. I congratulate the Government on this important new aspect of the legislation and commend the bill to the House.

Mr GEOFF PROVEST (Tweed) [10.30 a.m.]: The Trees (Disputes Between Neighbours) Amendment Bill 2010 amends the Trees (Disputes Between Neighbours) Act 2006 to implement recommendations arising from the statutory review of the principal Act. The bill gives the Land and Environment Court jurisdiction to hear disputes about high hedges that severely obstruct sunlight to a window of a dwelling on adjacent lands or views from such dwelling. It also gives the court jurisdiction to hear and determine matters under the Dividing Fences Act 1991 in certain circumstances where a related application has been made under the principal Act. It also enables the successor in title to an applicant to benefit from certain orders made under part 2 of the principal Act.

The Trees (Disputes Between Neighbours) Act 2006, commonly known as the trees Act, created a new procedure in the Land and Environment Court for resolving disputes about urban trees causing damage to property or that pose a risk of injury. Previously, disputes of that kind could only be resolved by suing in the tort of nuisance in the Local Court, District Court or Supreme Court. In the Tweed I have become involved in a number of disputes over trees. As the size of the Tweed increases and housing estates are developed, trees that grow across boundaries will obviously be a safety risk. The previous Act was very onerous to navigate, particularly for elderly people—I found it quite difficult—and it caused a lot of frustration in our local communities. We have had instances of trees being vandalised because they were blocking views. Tweed Shire Council has taken action to prevent such vandalism by erecting high barricades up to 10 metres high and 30 metres long and putting up signs. This has led to feuds between neighbours. If a tree dies in front of your place, you are assumed to be the guilty party.

I would like the Parliamentary Secretary in his reply to inform the House who determines that a tree poses a safety risk and, if a tree falls, what impact the new Act will have on insurance claims. The bill contains many terms. What constitutes a high hedge? Who determines what is a nuisance tree? What is the definition of a view? I will not oppose this bill. It contains many good elements. The arguments for the bill are that it implements the recommendations of the statutory review committee; it introduces a new part 4A, as the shadow Attorney General mentioned, into the trees Act; it enables the Land and Environment Court to deal with high-density hedges; and it will provide a cost-effective method of resolving disputes relating to such issues. This is an emotive issue for the community. Obviously, a large percentage of people would like to see more trees. They may impact on views and on values, but my chief concern is safety. As we know, when limbs fall off trees they can damage cars and injure people. Anything we can do to prevent that form occurring requires our backing.

I note the consultation with the Law Society and other people in the industry. I had brief discussions with professional tree loppers who are often the meat in the sandwich when neighbours start to remove trees under the trees Act. At times councils are slow to take action under the Tree Preservation Act or to deal with some of these issues. Hopefully this legislation will change that. I take on board comments by other members that the Act should be subject a review period to ensure it is achieving its goals. Once again, I am 100 per cent for the Tweed.

Mr NINOS KHOSHABA (Smithfield) [10.36 a.m.]: I support the Trees (Disputes Between Neighbours) Amendment Bill 2010. The amendments in this bill respond to issues raised in the two-year statutory review of the Trees (Disputes Between Neighbours) Act. This review involved seeking submissions from interested stakeholders and members of the public. The review received 231 submissions. Most were from private individuals and community groups. Submissions were also received from Government Ministers, the Land and Environment Court of New South Wales, local councils and professional associations. The high number of submissions to the review is a clear indication of the significance of laws relating to trees and neighbour relations to the community. The key policy objective of the Trees (Disputes Between Neighbours) Act is to provide a simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours.

The review of the Act confirmed that this policy objective remains valid, having regard to mediation statistics regarding tree disputes, the number of tree matters filed in the Land and Environment Court, the level of public interest generated by the review and the nature of submissions to the review. The review also concluded that the dispute resolution procedure established by the Act, and implemented by the Land and Environment Court, is generally meeting the objectives of the legislation. However, several submissions highlighted the opportunity for technical improvements to the legislation, and the report on the review suggested some minor amendments to improve procedures. Changes to support the enforcement of court orders were also put forward.

The report also recommended the creation of a new, strictly limited jurisdiction for the Land and Environment Court to consider extreme cases where hedges, rather than individual trees, severely obstruct views or sunlight to a dwelling. Finally, the report on the review recommended that the trees Act could be extended to land zoned rural-residential, but only in respect of trees that are causing damage or at risk of causing injury. The Government considered and accepted these recommendations. This bill makes amendments to implement legislative recommendations arising from the review. I am pleased to support the bill.

Mr RAY WILLIAMS (Hawkesbury) [10.39 a.m.]: I will make a brief contribution to the Trees (Disputes Between Neighbours) Amendment Bill 2010. The area I represent has vegetation across the Hills and the Hawkesbury shires, and residents regularly contact the council and me about disputes involving trees. Views do not necessarily come into the equation. Problems arise when neighbours who perceive that trees in close proximity to their homes may put their family and their property at risk have problems breaking through the barriers and getting council approval to remove such trees. I hope the amendments in the bill will alleviate some of those problems. It is very frustrating to see some of the environmental constraints put in place by councils.

Everyone in my electorate and across our shires loves and supports the environment and replenishes it. The revegetation across much of my electorate in the past 40 years has been extraordinary. Many areas that were largely market gardens or horse studs—everybody had a horse in their backyard—have changed dramatically over the past three or four decades to the point where the natural vegetation, in particular the vegetation on the Cumberland Plain, has been greatly replenished. However, the proximity of trees to houses on properties as a result of that replenishment has caused problems. I have received many, many representations from people across my electorate, from Baulkham Hills to Hornsby and Hawkesbury, who are concerned that they cannot get council approval to remove trees. I hope that I will be able to approach councils with this legislation and utilise it as a means of alleviating the problems people have raised.

Although we are talking about disputes between neighbours, it is worthwhile noting concerns I raised yesterday in a private member's statement about the safety of specific roads surrounded by significant vegetation. I refer to heavy vegetation of gum trees on the Bells Line of Road, which is the responsibility of the Roads and Traffic Authority. Over the past decade traffic on that road has increased. Branches fall from the gum trees on a regular basis and on numerous occasions cars have hit branches or driven over branches in the dark or in a fog—it was only a matter of time before there was a serious accident. A year ago Jeff Allatt of Berambing wrote off his car after colliding with a fallen branch.

The tree the branch had fallen from had been identified as having deteriorated but the Roads and Traffic Authority would not remove the tree. Indeed, the Roads and Traffic Authority had been asked to remove several trees and branches. I believe the Roads and Traffic Authority was negligent in its approach to removing those trees. Jeff Allatt, who collided with a fallen branch and wrote off his vehicle, has not worked for the past 12 months. I have taken up his case. I have written to the Minister and I have raised the matter in this House on several occasions.

The Roads and Traffic Authority has sought to pass the buck to Hawkesbury City Council. However, the Roads and Traffic Authority, in its own words and in answers to my questions, is responsible for trees that are five metres from the edge of the road. This tree was inside those five metres: It was only four metres from the edge of the road. I will fight on behalf of that resident, that neighbour—I guess we are all neighbours. Many neighbours in the area are concerned about the Bells Line of Road. Hopefully, this legislation will alert the Roads and Traffic Authority to its responsibilities to those who live on the Bells Line of Road and encourage it to remove trees from the Bells Line of Road where appropriate.

Mr DAVID HARRIS (Wyong—Parliamentary Secretary) [10.42 a.m.]: Like most local members, I deal with disputes about trees on a fairly regular basis, so I am pleased to make a short contribution to debate on the amendments in the Trees (Disputes Between Neighbours) Bill 2010. The Trees (Disputes Between Neighbours) Act 2006 partially replaced the common law of nuisance by creating a new procedure for resolving neighbour disputes about trees in certain residential and industrial zonings. The Act enables the Land and Environment Court to make orders to remedy, restrain or prevent damage to property, or to prevent injury to a person, caused by trees on neighbouring land. When introducing the legislation in 2006, the Government was mindful that the Trees (Disputes Between Neighbours) Act was landmark legislation. It therefore made the legislation the subject of a review in two years, instead of the usual five years. The statutory review of the Act was completed last year, and the Government has accepted all of the recommendations of the review.

This bill implements the legislative recommendations of the statutory review. In response to a large number of submissions made to the review, the bill gives the Land and Environment Court a new jurisdiction to hear disputes between neighbours about high hedges that severely obstruct sunlight to a window of a dwelling or views from a dwelling. The bill also gives the Land and Environment Court jurisdiction to hear and determine matters under the Dividing Fences Act 1991 in certain circumstances where a related application has been made under the trees Act. This will mean that related issues that arise under both Acts can be heard and disposed of in a single set of proceedings. The bill also extends the operation of part 2 of the trees Act, which relates to trees that are causing, or are likely to cause, damage to property or risk of injury, to land zoned rural-residential.

This is, again, in response to submissions made to the review. To encourage the enforcement of court orders made under the Act, the bill enables local councils to recover an administration fee where they enforce an order, and to register an order for their enforcement costs as a charge on the tree owner's land. The bill also enables an applicant's immediate successor in title to enforce orders made in relation to trees that are causing, or are likely to cause, damage to property or risk of injury to a person. The bill also makes technical amendments to close potential loopholes and improve procedures. For instance, the bill makes it clear that an application to the Land and Environment Court may still be made following the removal of the tree that caused the damage or injury on which the application is based. Finally, the bill also prescribes "vines" as a tree for the purposes of the trees Act. I congratulate the Government on bringing forward this bill, which makes important improvements to the trees Act.

Mr ROB STOKES (Pittwater) [10.45 a.m.]: I shall make a brief contribution to debate on the Trees (Disputes Between Neighbours) Amendment Bill 2010. Like other members, I recognise that trees are an important part of the fabric of our urban communities. For example, the spotted gum forests that are spread across my community of Pittwater are an important and defining part of that beautiful part of our State. Trees certainly evoke passion—passion on the part of people who love them and the amenity they provide.

Mr Barry Collier: They evoke passion among lumberjacks, too.

Mr ROB STOKES: As the Parliamentary Secretary says, they evoke passion among lumberjacks, too. Trees evoke passion among those who see, as a concomitant of their property ownership rights, the right to destroy whatever trees might be on their property as well. Those passions need to be balanced, and we need a proper venue in which the conflicts evoked by those passions can be resolved. When I was a baby solicitor I remember that my first ever instructions related to a tree dispute in Pittwater. A couple wanted to remove a spotted gum tree from their property in Clareville. I looked into the matter and I explained to them that it was against the law for them to remove the tree. At that point I learnt an important lesson about the practice of law: If you give your clients advice they do not want to hear they do not pay your bill. I am happy to report that they went to another solicitor, who gave them different advice; they were all taken to court and ended up paying a hefty fine.

Ms Clover Moore: I hope they lost.

Mr ROB STOKES: They did; they lost. The lopper was fined as well.

Mr Barry Collier: What about the solicitor?

Mr ROB STOKES: I do not know what happened to the solicitor. I note the matters that commissioners of the court must take into account when determining whether a tree should be removed, pruned or dealt with in some way because of a substantial loss of sunlight or views. It is important to remember that in many cases the trees were here long before we were. Trees are living organisms. When we are dealing with a tree we are dealing with something that is alive. We are dealing with something that may have been here well before human settlement. The problem from the tree's perspective might well be the settlement, not the other way around. It is important to keep that in mind in these kinds of debates. Nevertheless there is a need for flexibility and a valve for the resolution of the passions to which other members have referred. To that extent I do not oppose the addition of part 2A in the Act to allow the court flexibility to act when a tree is causing substantial interference. That is important.

A tree must be causing substantial interference with sunlight to a window of a dwelling, not sunlight to a dwelling per se. It must be interfering substantially with sunlight to a window, which is sensible, and with views. Other members have referred to what constitutes a view. Again, I understand there is some flexibility in terms of the definition of a view. The commissioner needs flexibility to determine what is a view in the circumstances of a case.

I raise another matter on behalf of my community. A lot of my constituents are very concerned about what happens to a person who illegally lops or illegally poisons a tree. In many cases the fines currently imposed by the courts do not act as a deterrent, even if the prosecution of someone who has chopped down a tree is successful. The added value to the land of removing vegetation is in the order of a couple of hundred thousand dollars, so a $10,000 fine is meaningless: The fine is no deterrent. I know that concern is outside the ambit of this bill, but as the Land and Environment Court seems to deal with tree disputes very well and the Environmental Planning and Assessment Act is not working well in deterring unlawful tree clearing, I suggest that the Government integrate all these matters under the one jurisdiction in the Land and Environment Court and give the commissioners more flexibility to deal with people who illegally clear trees. Because that jurisdiction is working well, we should consider ways to extend it.

It is clear throughout the debate that trees will become a more important part of the fabric of our neighbourhoods and our communities, particularly as human settlement becomes more dense. Now is the time to act to ensure that the way we deal with disputes about trees and the illegal clearing of trees is brought under the one jurisdiction and integrated so that the people who make decisions about disputes also make decisions about unlawful clearing.

Ms CLOVER MOORE (Sydney) [10.52 a.m.]: The Trees (Disputes Between Neighbours) Amendment Bill 2010 will enable the Land and Environment Court to hear disputes about high hedges on private property that block a neighbour's sunlight or views as well as disputes about trees that damage a dividing fence. The court can already hear disputes about trees that could damage a neighbour's property or injure them following legislation passed in 2006. I welcome City of Sydney staff reports that the 2006 legislation has had positive outcomes for tree canopy, not just on private property but also on council street trees through new court precedents, including a determination that natural processes like leaf and fruit drops, and bird droppings do not warrant orders to remove or lop trees.

I welcome and support the comments of the member for Pittwater and his suggestion to bring all tree issues under the one jurisdiction. That is a positive proposal and should be considered by the Government. I understand the Act is being applied appropriately, currently with principles that aim to protect trees, and that it is not being used for trivial and vexatious matters. Trees are vital to the urban setting. This legislation is considered in the context of Australia being the driest continent and also the most urbanised country; 65 per cent of the community lives in urban areas. We have managed to remove two-thirds of our canopy over the past 200 years. We must be mindful of the importance of our tree canopy to the environment. Trees provide shade, intercepting up to 90 per cent of the summer sun, with one tree equivalent to five air conditioners running for 20 hours a day.

Trees provide immense environmental benefits. They are natural carbon sinks. They absorb carbon dioxide from our atmosphere, and play an important role in slowing global warming. They entrap airborne particles and pollutants such as sulfur dioxide, ozone and carbon monoxide, and trap toxic particles emitted by diesel exhausts. Tree roots keep the soil porous so that it absorbs more stormwater. Trees reduce the amount of toxins in stormwater that go to our harbour and oceans. Trees promote biodiversity, providing habitat for wildlife, particularly native birds, which would otherwise not survive in the intensively developed urban environments where the majority of us live.

Trees make our city beautiful. The canopy provides a human scale in contrast with the large developments that tower over parts of the inner city. Without trees the urban setting can be bleak and soulless. Trees help establish the character of an area. The City of Sydney has about 28,500 street trees and over the past five years we have planted more than 5,000 advanced street trees to add to our tree canopy. I am slightly envious of Singapore, which has a tree canopy of 47 per cent. It also has the climate to make it easy to achieve this. The canopy in Sydney is under 20 per cent and of course this is in the context of Australia being such a dry continent. However, the City of Sydney is setting very high standards to dramatically increase that canopy. It will not just be through street trees but through planning policies for roof gardens, balconies and community gardens, about which we are quite excited.

This leads to the issue of views and, unfortunately, some people prefer to keep their views rather than let neighbourhood trees grow and contribute to the collective urban forest. I think it is appalling that some people are willing to poison trees that benefit the wider community just to protect their view. I have said to people in the Glebe area that an angophora can, in fact, frame and add beauty to a view. People should see their view in the context of the benefit that trees provide to it. The City of Sydney does not remove trees to maintain views. Our position is that trees contribute to the greater good and should take precedence over the views of a few.

I am concerned that under this bill the Land and Environment Court will be able to issue orders to remove or lop a tree that forms part of a high hedge based on its interference with a neighbour's view. Although the bill specifies a number of considerations before the court can issue an order, including the severity of the obstruction, order of occupancy and whether the trees are deciduous, I hope that this is about providing a path to resolve disputes rather than setting a new framework for the progressive removal of urban trees solely to protect an individual view. I welcome continued exclusion of council trees under the bill, which, given the large number of trees owned by most councils, could impact significantly on that urban canopy. Most councils have responsible tree management systems in place and they respond to community concerns. Trees are essential to urban amenity and I hope that this legislation will continue to protect them.

Ms KATRINA HODGKINSON (Burrinjuck) [10.57 a.m.]: I speak on the Trees (Disputes Between Neighbours) Amendment Bill 2010. I assure the member for Sydney that New South Wales is a much nicer place to live than Singapore climate wise. We have the beautification of trees in this lovely city and right across the State. They serve a valuable purpose in both rural and metropolitan areas. I endorse the comments of the member for Tweed about what constitutes a view. Views come in all shapes and sizes. A view can be something that adds value to a property in real estate terms or a view can be personal. Some people might like views of houses while others like views of oceans; it could be a view of anything because everyone is different. Is there a descriptor of what constitutes a view according to this bill? I have a little concern about the extension of the operation of part 2 of the principal Act to trees situated on land zoned rural-residential. I have received advice, which states:

Section 14A provides that this Part applies only to groups of 2 or more trees that are planted so as to form a hedge and rise to a height of at least 2.5 metres above existing ground level. This part does not apply to trees situated on land within a zone designed "rural-residential" or having the substantial character of that zone, or crown land.

I ask the Parliamentary Secretary in reply to outline what size acreage is being considered as rural-residential. A lot of subdivision is taking place in some of the towns in the Burrinjuck electorate. Gundaroo, Collector, Yass and Murrumbateman are all experiencing significant growth because of their proximity to Canberra and the desire of public servants in particular but certainly other members of the Canberra community who want a tree change. Crookwell, Gunning and all the towns and villages in that surrounding area could be included in that mix.

We have rural-residential blocks that differ in size, depending on whether they were concessional allotments and how they have been distributed and sold. They could be anywhere from five acres to 40 hectares—which is 100 acres on the old scale—or even 200 acres. It depends on a variety of factors and the local government concerned. How will neighbourhood dispute legislation relate to those people? A row of cypress leylandii is often planted quite close to a boundary, on a boundary, or even surrounding a boundary, as happens on a number of properties in the Taralga region, to act as a windbreak, a shelter for stock—it is very important for beef and sheep to have shelter—and for noise control. I know that freeway noise impacts on many people who live along the road to Albury, and trees or hedges are planted to provide noise abatement. There are many different reasons why people plant trees.

When I read this bill I reflected on all the issues that arose years ago as a result of State environmental planning policy No. 46, which penalised farmers for wanting to remove vegetation in order to plant crops to feed this nation. Yet we are now debating a bill that will legalise the removal of trees that obstruct a view. I can appreciate how this legislation applies in metropolitan areas when a person has bought a property with a view and then something is built or planted in front to obstruct that view, which gives rise to a genuine neighbourhood dispute. I agree that for that purpose the bill is genuine but I want to know why it would apply in the circumstances I have outlined in my electorate. I am also concerned about people complaining about hedges grown along the perimeter of a property that obstruct their view as they drive by. I know that such complaints have been made in the past. I am of the strong belief that it is none of the motorist's business whether a landowner plants trees, hedges or rows of trees on their property. Surely it is up to the property owner to decide whether they plant trees— particularly if their landholding is reasonably substantial—even if the land has a rural-residential zoning. I would like clarification of that matter.

I note that the bill makes a consequential amendment to the Land and Environment Court Act. Schedule 2.3 provides that the Native Vegetation Act 2003, which prohibits the clearing of native vegetation except in accordance with that Act, does not apply to any clearing of native vegetation in accordance with an order under the principal Act. The member for Pittwater said quite validly that all such legislation will come under the one roof rather than people having to shuffle between different pieces of legislation in relation to trees. They are my principal points in relation to the bill. I agree that in high-occupancy and metropolitan areas the legislation will be useful but again I stress that in true rural-residential areas, where we are seeing increasing numbers of subdivisions, we need clarification on behalf of people who want more privacy, noise abatement, wind control and shelter for their stock.

Ms PRU GOWARD (Goulburn) [11.04 a.m.]: I support the Trees (Disputes Between Neighbours) Amendment Bill 2010 with a great deal of reluctance. I note some of the advantages of the legislation. This bill provides for the resolution of disputes about high hedges with respect to the blocking of sunlight or views and also provides for councils to recover some of the administrative costs from recalcitrant members of the community who refuse to pay for the removal of trees that have been the subject of a court order, leaving it to councils. However, because councils are able to recover only the add-on costs of removing trees and not the administrative costs, they have understandably been very reluctant to do so as it means a net loss of income for them.

I note that a number of submissions raised concerns about the type of zoning to which the Act initially applied. These were not considered to be sufficiently broad and have now been extended. This is of particular relevance to the electorate of Goulburn because of the prevalence of rural-residential land. The bill extends the application of the Act to trees on land that is now zoned rural-residential or an equivalent land-use zone, which is a very welcome addition. But it does not go far enough. At the moment the provisions apply only to disputes about trees that have caused, are causing or are likely to cause damage to property or injury. It will not apply to the new high hedges jurisdiction.

That is of some concern in the Southern Highlands and will be cold comfort to many residents in the Goulburn electorate who, over the past three years, have contacted me about cypress leylandii, in particular, and the enormously high hedges that can be grown very quickly between the boundaries of properties, throwing the gardens of neighbours into shadow. Jan Heinke, a resident in my electorate, has championed the restriction of cypress leylandii hedges in the rural landscape for some years now. A delegation from the Wingecarribee Shire Council and I approached Mr Frank Sartor when he was the Minister for Planning and made the case that cypress leylandii hedges were an incredible imposition on the landscape. It is not just an imposition on a neighbour driving by but the beauty of the landscape is denied to visitors and anybody else in the area. Some roads in my electorate have become long, dark green tunnels from which little can be seen except the edge of the hedge.

Neighbours whose properties border cypress leylandii hedges should be given the opportunity to object to this type of hedge. I note that that is specifically not allowed in the new bill. Those hedges, in only a few years, have the potential to throw not just a house or a window, as is currently stipulated in the Act for urban dwellings, or garden into shade but to permanently block a view and essentially reduce the value and amenity of the property. Unfortunately, the Department of Planning has refused to assist the Wingecarribee Shire Council to pass any bylaws as part of the new local environmental plan that might restrict high hedges in rural areas and this amendment bill was really the last hope for residents concerned about the impact of cypress leylandii on their gardens, for example. People move to the Southern Highlands because they can buy slightly larger blocks than they can afford in the city. Their vegetable and flower gardens are then put in permanent shade and their soil is depleted by the rapid growth of these extraordinary trees. Their vegetable and flower gardens then fail to thrive and the once sunny backyard very quickly ends up growing mushrooms rather than tomatoes because it is essentially a garden in the dark.

While the council may have been active in arguing with the Department of Planning for a change to the local environmental plan, this was the only other way of proceeding. I am absolutely appalled to learn that in developing this bill—listening to people who have identified very specifically and irresistibly the argument that when one buys a house on larger acreage in a rural area such as the Southern Highlands, it is about not just the house but also the garden—the Government did not take those views into consideration. Some people have bought modest houses. They did not move to the area for the house; they went there because they could afford to plant the large garden of their dreams and grow their own vegetables. The important Slow Food and natural foods movements are significant in my electorate because people have the room to grow vegetables in their own gardens.

However, the bill does not enable that to occur. The amendment bill does not recognise that it is not just a window of a house that might be impinged by the shade from a tall hedge; it affects the entire amenity of a house—the back garden, fruit and vegetable plots, fruit trees, a verandah and a sunny sitting area. People move into a house in the Southern Highlands often with the expectation of enjoying the most wonderful and beautiful scenery that New South Wales has to offer. Yet within a couple of years cypress leylandii hedges can make that absolutely impossible.

I support the bill as a step in the right direction, but it is a disappointingly short-sighted step because it does not acknowledge that rural-residential land is different in size and amenity or the reason why people buy it. It would have been no more trouble for the bill to acknowledge that people's vegetable and flower gardens are thrown into permanent shade or residents are suddenly denied the landscape that they had enjoyed for 20 years because their neighbours planted cypress leylandii hedges. It would have been so easy to respond to those concerns and address them in the bill without overly impinging on the rights of property owners. That is a disappointing shortcoming in the bill, but ultimately it is a step in the right direction. I am particularly pleased that it provides for councils to recover administrative costs from recalcitrant ratepayers.

Mr MICHAEL RICHARDSON (Castle Hill) [11.12 a.m.]: The Trees (Disputes Between Neighbours) Amendment Bill 2010 is more notable for what it does not provide than for what it does. The issues dealt with by the bill relate primarily to sunlight. One would have to say that the Government, in introducing the bill, is hedging its bets. The bill does not deal with some issues that are of genuine concern to residents. Not everyone has a hedge growing next to their home that obstructs their sunlight. Some people have trees growing next to their house or on the nature strip that cause significant damage to their property. The concerns and interests of those people were not taken into account in the Government's review of the original Act. The bill gives the Land and Environment Court a new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling. It makes it clear that an application to the Land and Environment Court can be made after trees have been removed. In Robson v Leischke [2008] NSWLEC 152 the Land and Environment Court found that the court had no jurisdiction to make orders to remedy damage to property, or require payment for compensation for damage caused by a tree, if that tree has been wholly removed.

The bill amends the Act to prescribe vines as a tree for the purposes of the Act. Once again, not everyone has issues with vines growing next to their property or over their fences. My constituent Mr Dennis Newman has raised issues with me over a significant time. I want the House to listen to his story, particularly because Mr Newman has been through the mill. He has been to the Land and Environment Court over a matter relating to a tree growing next to his property that is damaging his property, and he has got absolutely nowhere. Mr Newman has a problem with a large 20-year-old jacaranda tree, which is still growing, that is located in the back corner of the adjacent property in Castle Hill less than one metre from the fence. It has damaged the fence footings and Mr Newman's concrete patio, its roots are through his house footings and there is leaf damage to the roof. The Land and Environment Court carried out an inspection, but all those issues were apparently totally disregarded.

Before going to court Mr Newman dug a 200-millimetre deep trench along his property. When he went to court he was asked whether deeper roots were present. Of course, he had not dug the trenches as deeply as the court wished, so he went back and dug the trenches and found those deeper roots. He resubmitted that as new evidence and was, effectively, laughed out of court. His claim was flatly dismissed along with a new builder's report that stated that the tree was causing enormous damage to Mr Newman's property. Mr Newman estimates that the damage has cost about $17,000—and rising—and it cost him $2,000 to take the case to court. He says that the word "roots" needs to be included in the bill so that it covers not only branches but also the roots of trees. We all know that roots can do at least as much damage as branches.

Another issue that angers Mr Newman is that councils are specifically excluded from the provisions of the Act. He said that a number of liquid amber trees that are planted on his nature strip are interfering with his stone retaining wall. The local council told him that it would wait until the damage was obvious, which means effectively that the wall will need to fall down. I have had some personal experience with the Hills Shire Council, formerly Baulkham Hills Shire Council, in relation to trees. About four or five years ago I was sitting in my electorate office when I thought a bomb had gone off. My office is next to a council park in Castle Hill. A dead tree, which had been growing on the boundary, had fallen into my office and smashed one of the plate-glass windows. There were huge shards of glass across a couch where constituents had been sitting only half an hour earlier. Unquestionably, a constituent would have been killed had he still been sitting there.

The council had not inspected its trees and had not accepted its responsibility for removing trees that clearly posed a danger. I am sure that that occurs throughout New South Wales. Mr Newman has a point: Councils across the State should accept more responsibility for trees in public places. The fact that the Act, as currently constituted, specifically exempts councils from consideration does not seem to me to be fair and adequate. The bill deals with issues such as hedges and vines but does not deal with the real issues that are concerning residents across this great State.

Mrs DAWN FARDELL (Dubbo) [11.18 a.m.]: I make a brief contribution to debate on the Trees (Disputes Between Neighbours) Amendment Bill 2010. I have a lot of contact with my constituents about tree disputes. To date, local councils have been restricted as to how they can act within the law to resolve a dispute without the matter going to the Land and Environment Court. It is good that there is the new procedure in the Land and Environment Court for resolving neighbour disputes about urban trees that cause damage to property and are an energy risk.

The bill gives the court jurisdiction to hear and determine matters arising under the Dividing Fences Act. As we know, not all fences are made of Colorbond or timber and many people in the area I represent have vines holding up old timber fences, and disputes arise. We need to have some consideration for people whose properties have been established for quite some time, particularly in the older areas. I heard the member for Goulburn refer to her part of the world, which is a lovely area with wonderful gardens and hedges, but there are a lot of older homes in my area as well. If those homes are surrounded by vacant land that someone subsequently builds on, why should the long-time resident be affected? If they have a tidy hedge that has been made into a fence, why should their enjoyment of living be affected by someone with alternative gardening ideas?

A pleasing aspect of the bill is that it allows local councils to recover an administration fee when they enforce an order under the Trees (Disputes Between Neighbours) Act and to register an order for its enforcement costs as a charge on the tree owner's land. The bill describes vines as trees for the purposes of the Act. There is an issue in my area where the odd neighbour or two that I am quite close to thinks that bamboo is quite acceptable as a fence. If we are looking at including vines in the Act we should also look at including other plants that people use as hedges. If vines are trees for the purposes of the Act, bamboo should be too because it is worse than flying foxes.

Mr Thomas George: They must be bad!

Mrs DAWN FARDELL: They are pretty bad. In relation to schedule 1 [3], which deals with native trees, I point out that storms and strong winds can cause disasters in small suburban blocks by bringing down a large eucalypt or gum tree on top of a house or car. It causes unbelievable damage. If we are to be serious about addressing this issue, we need to take a good look at this aspect of the bill. Such trees are totally inappropriate for suburban blocks, not just in the Dubbo electorate but throughout New South Wales and Australia, and consideration should be given to councils' permission to remove such trees. Eucalypts cause other damage in suburban blocks as well, for instance, where people have a backyard pool. Such people do not necessarily live in high-income areas. The daily damage caused by leaves from these trees is appalling and needs to be addressed. What can we do to remove native trees from suburban blocks? I am sure it would make the job of State Emergency Service members a lot easier if they did not have to chainsaw fallen gum trees after every storm that hits the State.

High hedges are certainly not appropriate on some smaller blocks, but they are appropriate on larger blocks. Many of the new subdivisions in my area beyond the one-acre blocks cover a couple of hectares. Many farming areas that are now situated close to town have been subdivided under local environmental plans and people are enjoying the lifestyle. They have quite a bit of room to move around with their children. They may have a tennis court or a pool or just a home on a big block with room to run a horse or whatever. However, there are covenants about fencing. Residents cannot have a fence over about waist height so they tend to put up a hedge for privacy. Everyone deserves privacy, and I have no issue with hedges being grown to a height of at least 2.5 metres on a larger block of land. To my mind, it is acceptable to have such a hedge because it would not block a neighbour's sunlight or shade.

Another matter I want to raise relates to the apartment blocks being established throughout Sydney under the Government's new planning laws. Neighbours have no recourse if an apartment block is erected alongside their property. There have been frequent reports about this problem in the newspapers. If we are proposing to limit trees and hedges to stop them blocking sunlight, what is the Government doing to address the problems caused by large apartment blocks that are erected beside suburban homes? Some homes are being built out, particularly on the North Shore, and they do not get any sun from the north, south, east or west because of the surrounding apartment blocks. I advised constituents some time ago that a draft bill was coming forward. People have been waiting for a long time to have some recourse in regard to neighbourhood trees that are dangerous. The problem in my area relates more to native trees than hedges. I hope the bill will not force residents to take every little problem they have to the community justice centres. I hope that councils will be able to deal with the problems.

I question also whether we are putting too much emphasis on how people should keep their yards and gardens. If someone is building a new home or units in some parts of my electorate the council will not allow roses or hedges to be grown. People have to plant native grasses instead. I think that is rather sad. Dubbo does not have water issues, apart from price increases, and there is an ample supply. If people are prepared to pay for that water through excess water charges they should be allowed to grow roses, not just native grasses. It is not Arizona; it is Dubbo. It is a hot climate; the western climate is harsh but it is a very good climate for growing things. Broken Hill grows the best roses I have seen in New South Wales.

If any area should grow native grasses it is probably Broken Hill. However, it is not Arizona and residents should not be forced to comply with controls dictated by a bureaucrat. People should be allowed to have hedges, to a height that does not affect a neighbour, and should not be forced to grow plants that they do not wish to grow. If they are responsible residents they should have the right to grow what they want. Overall, I accept the provisions of the bill, but we need to keep a close eye on it. Councils need to have these powers but they should not be enforced against a person who has always been responsible in growing a hedge on a fence line just because someone new has moved in and wants to see the hedge removed.

Mr THOMAS GEORGE (Lismore) [11.25 a.m.]: The object of the Trees (Disputes Between Neighbours) Amendment Bill 2010 is to amend the Trees (Disputes Between Neighbours) Act 2006, which is the principal Act, and certain other Acts and an instrument in order to implement the recommendations arising from the statutory review of the principal Act. In particular, the bill extends the operation of part 2 of the principal Act to trees situated on land zoned rural-residential. It also gives the Land and Environment Court the jurisdiction to hear disputes about high hedges that severely obstruct sunlight to a window of a dwelling on adjoining land or views from such a dwelling. It gives the court jurisdiction to hear and determine matters under the Dividing Fences Act 1991 in certain circumstances where a related application has been made under the principal Act. It makes it clear that an application under part 2 of the principal Act can still be made following the removal of the tree that caused the damage or injury on which the application is based.

The bill allows a local council to recover the amount prescribed by the regulations as an administrative fee where it enforces an order under the principal Act, in addition to the costs of carrying out the work required to enforce the order. It enables a local council to register an order for costs as a charge on the land concerned. It also enables the immediate successor in title to an applicant to benefit from certain orders made under part 2 of the principal Act. The bill provides for plants that are vines to be treated as trees for the purposes of the principal Act and makes other minor statute law revision amendments.

I have a few concerns about the bill. I know that everyone has touched on this particular issue. There would not be one member in this House who has not had some sort of complaint about a tree, but now we are forcing people to go to the Land and Environment Court to resolve the matter. I ask the Parliamentary Secretary to advise the House whether the court will be provided with the resources to handle the onslaught that I expect will follow. My electorate does not have ocean views so I probably do not have as much trouble as members in other electorates have. However, could the Parliamentary Secretary advise what the Department of Housing will do about its problems? Is the department going to run off to the Land and Environment Court?

I have had a number of complaints from tenants of the Department of Housing who have a tree on their side of the fence and the neighbour wants it shifted. Is the department going to go to the Land and Environment Court to get that sorted out? That is a very valid point. I will give an example that relates to a provision in the bill that I outlined earlier. I wish to quote from a letter that I received that highlights the problems being experienced by two neighbours living in a Department of Housing estate. That letter states:

Since the last letter, I have had my 3rd child. He has been quite ill frequently now and has been hospitalised—

this problem has been so protracted that a third child has since been born—

and he is only 11 mths old. I have had him to doctors more than his 2 sisters ever were. I have also been told by my GP due to him having had bronchitis due to hospitalisation that he is going to end up asthmatic which explains his cough.

I am not asking for the tree removal for beautification of our property but for the health and safety of myself, my husband and our three children.

The Department of Housing has to resolve any arguments between neighbours relating to overhanging trees. Should councils be forced to go to the Land and Environment Court when many of these community housing problems should be resolved by the Department of Housing? Councils that are confronted with tree problems such as this often take a long time to cooperate. Under this legislation we are giving councils authority to take these matters to the Land and Environment Court. I am sure that many members would be aware that people living in Department of Housing estates or in any other estates have made complaints to councils. However, councils do not attend to those matters, which is causing major problems.

This legislation makes it easy for councils to go to the Land and Environment Court. I doubt whether councils will accept the responsibility that has been bestowed upon them. Councils can now recoup their costs but I believe that there will be hesitancy on their part to carry out the work and to charge landholders for such work because councils will no longer have the ability to make a decision about who is right or wrong. Camphor laurel trees are a major problem on the North Coast. Some councils list camphor laurel trees on their tree preservation orders, which limits a council's ability to remove any nuisance trees. I have grave concerns about many of these issues. To me, this do-nothing bill will force councils to go to the Land and Environment Court. How will the Department of Housing resolve these problems? Will the Land and Environment Court be given additional resources to handle these problems?

Mr VICTOR DOMINELLO (Ryde) [11.33 a.m.]: I contribute briefly to debate on the Trees (Disputes Between Neighbours) Amendment Bill 2010, the overview of which is as follows:

The object of this Bill is to amend the Trees (Disputes Between Neighbours) Act 2006 (the principal Act) (and certain other Acts and an instrument) to implement the recommendations arising from the statutory review of the principal Act. In particular the Bill:

(b) gives the Land and Environment Court (the LEC) jurisdiction to hear disputes about high hedges that severely obstruct sunlight to a window of a dwelling on adjoining land or views from such a dwelling, and

(c) gives the LEC jurisdiction to hear and determine matters under the Dividing Fences Act 1991 in certain circumstances where a related application has been made under the principal Act.

The matters to be considered by the Land and Environment Court are listed in section 14F. Some of the relevant matters include:

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land ...

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed

(s) such other matters as the Court considers relevant in the circumstances of the case.

I agree with those members who have spoken in debate on this bill. Most of them would have received a complaint concerning tree-related problems. In my time as a parliamentarian disputes between neighbours have been some of the most heated disputes that I have experienced. As a lawyer, whilst I conducted many cases in the Supreme Court, the Family Court and the like, some of the most heated disputes were between neighbours fighting over the Dividing Fences Act, or trees and nuisance-related matters.

Recently a gentleman by the name of George William Dicker Senior approached me about a problem concerning a tree in his neighbour's backyard. Mr Dicker, a World War II veteran, has lived in his house in West Ryde for 50 years. Mr Dicker's neighbour planted a banana tree that overhangs his fence and is causing significant problems. It is blocking out the sunlight and causing damage to the fence. This bill, which is a welcome piece of legislation, will attempt to address issues caused by the blocking out of sunlight and provide people with recourse to the Land and Environment Court if their quiet enjoyment is inappropriately interfered with. I ask the Parliamentary Secretary, when he responds to debate on this bill, to confirm whether the definition of "hedge" is broad enough to cover situations such as banana trees and bamboo. Section 14A states:

14A Application of PartA Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

In Mr Dicker's case it appears that only one banana tree was planted. Many members would be aware that banana trees and trees of that kind, for example, bamboo, have suckers that grow and expand in width. One bamboo shoot or one banana tree might be planted but, if left unattended, it will cover many metres in width within four or five years and form a hedge. However, the definition refers to the planting of "groups of 2 or more trees". I hope that the court will adopt a commonsense approach to Section 14A so that people such as Mr Dicker can get comfort from this legislation if he needs to apply to the Land and Environment Court for relief. Finally, the member for Tweed asked me to ask the Parliamentary Secretary the following question: Has the Government consulted with the Local Government and Shires Associations in relation to this bill and, if so, what has been its response?

Ms GLADYS BEREJIKLIAN (Willoughby) [11.39 a.m.]: We are debating an important issue, which is why many members have made a contribution to debate on the Trees (Disputes Between Neighbours) Bill 2010. Prior to the introduction of this bill, if trees or hedges caused damage to property or persons, residents had no recourse to take further action. However, this bill provides for the resolution of disputes relating to high hedges that block out the sunlight or views. The provisions in this bill are additional to provisions that currently exist in the law. Many people in the Willoughby electorate have worked hard to secure a view from their properties. As many people now live closer together than they ever did due to increasing densities, this issue has become even more important and relevant to people's enjoyment of their properties and their ability to live with one another comfortably and respectfully.

The bill gives the Land and Environment Court new jurisdiction to hear disputes about hedges that severely block sunlight to a window of a dwelling on adjoining land or views from that dwelling. These new provisions allow residents recourse to resolve these issues by creating a process to hear and dispose of neighbour disputes. Before determining an application the court must consider various factors, such as the contribution of trees to the natural landscape, the scenic value of the land or locality, and any environmental impact of the trees or hedges in question. These provisions also give certainty to local councils that enforce a court order to recover prescribed administration fees associated with neighbour disputes.

I support this bill. Although not perfect, it takes that additional necessary step to provide recourse to residents and offers an extra level of certainty. At the same it, it recognises the value people place on their views and on living respectfully and harmoniously with their neighbours. Since I have been a member of this place many of my constituents have spoken to me about hedges or trees that have caused them angst. This bill goes a little way to alleviating some of their concerns. More than anything else, it recognises that people can suffer loss or some kind of angst even if a tree or hedge does not cause, or potentially cause, physical damage. The bill takes into consideration residents' views and sunlight. I commend the bill to the House.

Mr DARYL MAGUIRE (Wagga Wagga) [11.42 a.m.]: I shall make a brief contribution to the debate on the Trees (Dispute Between Neighbours) Amendment Bill 2010. I understand the intent of the bill, but I am concerned about some aspects of it. In particular, I am concerned about paragraph (b) of the objects of the bill, which states:

(b) gives the Land and Environment Court (the LEC) jurisdiction to hear disputes about high hedges that severely obstruct sunlight to a window of a dwelling on adjoining land or views from such a dwelling

Most members have raised this issue as an area of concern. My concern relates to rural dwellings. The rural lifestyle is becoming more popular and an enormous number of subdivisions are occurring in those areas. I am concerned that development applications for those subdivisions allow new dwellings to be constructed close to the boundaries. Therefore, the sunlight and amenity of these new dwellings can be affected because of the geographical nature of the land. For example, a block of land may be rather rough in terrain and there may be only a small envelope on which a dwelling can be built. A person may build a home where it will be affected by an existing neighbour's trees or will impact on the neighbour, whether the neighbour already lives there or is developing at the same time. Over time the trees will grow and there will be a dispute. It is because of the geographical nature of the land.

I refer to the suggestion that views can be affected. I believe that when a person buys a developed or undeveloped rural block they should not be able to claim that their view is being obstructed by a neighbour's tree. An adjoining landholder should not have the right to have a tree removed or cut unless, as is stipulated in the bill, it affects the light or amenity of the property. I refer, in particular, to rural landscapes. I understand that there are problems with trees in towns. For example, trees may have been planted unwisely; the wrong type of tree may have been selected. The tree may impact on property, foundations may be undermined, streets and paths may be damaged—those sorts of things may occur. Indeed, trees can destroy fences as they grow. I understand all of that.

I merely want to make a point from a rural perspective: people invest a lot of money in tree lines and in their farms. However, rural subdivisions of virgin property sometimes provide limited envelopes on which to build. Over time there will be problems because the developing owner of the property has nowhere else to build. It will create difficulties. For example, in time trees will grow, yet this bill suggests that an adjoining landholder has the right to the view. I suggest that landholders have a right to plant trees on their property to improve the amenity of the rural property, to provide windbreaks, and also for carbon, salinity and all these sorts of things.

I have planted 1,600 trees on my property. I spoke with our neighbours and we came up with a plan to plant those trees to improve the amenity of the land and, of course, for the wildlife. I did that in conjunction with the neighbours; none of those tree plantings will encroach on or impede their views. However, in the future that property might be approved for development and a new house may be built. In the future that could affect the trees I have planted. The new neighbours could complain that my trees, which may have been planted 10 or 20 years previously, are affecting their view and amenity.

That is the part I am concerned about: how the Land and Environment Court interprets that. Perhaps where those close proximities occur in future developments there needs to be some kind of limit, or minimum offset, to the boundary so that both neighbours can live in harmony. They will know that there is a tree line, which will grow in time, that was planted by a neighbour and that it will not be subject to a Land and Environment Court order as it develops and grows. I hope that is reasonably clear. I have spoken in the debate from the rural perspective. I support the bill. However, I make the point that in rural areas people invest in tree lines for all the reasons I have outlined. There should be a setback so that the work the landholder has undertaken over many years is not subject to a claim by a new development that may occur in the future.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [11.47 a.m.], in reply: I thank the 15 members who have spoken to the Trees (Dispute Between Neighbours) Amendment Bill 2010. I note also that the Opposition does not oppose the bill. In fact, Opposition members have made quite supportive comments. The member for Epping led for the Opposition. He made a statement in regard to schedule 2 and the amendment to the Dividing Fences Act, suggesting that it did not apply to past damage. I have spoken to him and he accepts that it was an oversight on his part. We will forgive him under what he would appreciate is called the slip rule.

I refer to the comments of the member for Pittwater. This bill is about resolving disputes between neighbours; it is not about prosecuting people for illegal clearing or removal of trees. Such prosecutions would be commenced in the Land and Environment Court. Of course, the penalties are imposed by the court within the range available through legislation. The weight the court would give to deterrence, either general or specific, is a matter for the court. As I have already said, the bill is concerned with the resolution of disputes between neighbours, not about punishing illegal clearing or vandalism. Prosecution for those types of offences is dealt with under other environmental legislation and determined by the Land and Environment Court. For the information of the member for Hawkesbury, his is a matter that really should be raised with the Minister for Transport and Roads.

The member for Tweed made interesting observations during the debate. He asked who determines whether a tree is a safety risk and I advise the member that the court will make that determination. It is important to note that some members of the Land and Environment Court have arborist training and that, quite often before making a determination, they obtain a report from an arborist. The matter of insurance is a matter for the home owner or the landowner.

The member for Tweed and the member for Burrinjuck queried what constitutes a view. The Government's response is that that really depends on the circumstances of the case. For the information of these members, I refer to page 2,359 of the Macquarie Dictionary, which is available for members' perusal at the table and which sets out 28 definitions of the term "view". It is really a matter for the determination of the court in the particular circumstances of a case. Some dictionary definitions include a "range of sight or vision" and "a sight or prospect of some landscape, scene". Members who are devotees of Fawlty Towers may recall that consideration of the meaning of the term "view" arose in the context of the view from a window in Torquay, and may recall that John Cleese wondered whether the visitor expected a view of the Sydney Opera House.

The breadth of the concept of a view or protection of a view is constrained by the requirement of being able to demonstrate that a view is severely obstructed pursuant to paragraphs (a) (ii) and (b) of new section 14E (2), which states in part, "the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters" that militate against disturbing the trees. "Any other matters" are set out in a new section 14F and include the location of the trees concerned, the value of the trees to the local environment and other related matters.

The member for Burrinjuck discussed the bill in the context of the definition of "rural-residential". The definition of "rural-residential" is really a matter that is determined by local planning laws. It is important to note that new section 14A (2) of the bill does not apply to trees on land within a zone designated rural-residential under an environmental planning instrument. The member for Burrinjuck also discussed the issue of obstruction of a view that would otherwise be enjoyed by people who simply drive by and whether those people will be able to make an application under the Act. The Government's response is that people driving by will not be able to make an application because the legislation applies to disputes between neighbours, two or more of who have an interest in the land. I point out to the member for Burrinjuck and to the member for Goulburn that part 2 of the principal Act relates to trees that cause, are causing or are likely to cause damage or injury. That provision has been extended to land zoned rural-residential as it was raised in the context of the review.

The new jurisdiction relating to high hedges that severely impact on views and solar access is restricted to land zoned residential because the Government is moving cautiously in this legislative area and because high hedges are less likely to block views and sunlight in areas where properties are large and homes are spaced far apart. The issue may be re-evaluated during the next statutory review of the legislation, which is due to be undertaken two years after the commencement of part 2A. The member for Goulburn and the member for Wagga Wagga queried why the new high hedges jurisdiction does not apply to land that is zoned rural-residential. While there are some concerns about high hedges in rural areas, the Government considers it preferable that the new procedures should not apply to hedges on rural-residential land in the first instance.

Firstly, disputes over high hedges that block sunlight and views are likely to be rarer in rural-residential zones because the blocks of land are large and the houses are spaced widely apart. Secondly, the new high hedge dispute procedure will apply to all hedges, including those made of native species. Given that the Native Vegetation Act also applies to rural-residential land, it is important to ensure that the new procedure will not interfere with the broader environmental goals of the Native Vegetation Act. That restriction also may be revisited and considered in the proposed review two years after the adoption of the new procedure.

In relation to Leyland cypress and Leighton green trees, which were referred to by the member for Goulburn, I point out that it is really not appropriate for the trees Act to prohibit or ban a particular species of tree. The purpose of the Act is to provide a procedure for resolution of disputes relating to trees causing certain types of problems rather than regulating the planting of certain species or their location.

In response to comments made by the member for Castle Hill, which directly oppose the contribution made by the member for Sydney, I point out that application of the legislation does not extend to trees on council land because, for a range of strong reasons, the report of the review recommended against it and the Government accepted the recommendation. The review noted that councils are already liable in tort regarding trees, that they regularly settle with landowners in relation to damage or injury caused by trees and that, unlike private landowners who are covered by the Act, councils manage their tree population on a day-to-day basis and employ professional staff.

Unlike private landholders, councils already have processes in place to receive complaints and investigate and respond to complaints about trees. Councils generally respond in a timely manner when a matter is brought to their attention. They manage hundreds of thousands of trees over a vast area, which includes Crown reserves, community land and public roads. Whereas private land in urban areas may on average adjoin properties of four or five other landholders, local councils effectively are neighbours to almost every landholder in a local government area. If trees on council land were included within the scope of the Act, councils would be subject to a large volume of additional claims.

The member for Lismore discussed the issue of the sufficiency of resources for the Land and Environment Court. I advise the House that the Land and Environment Court is well resourced and has trained arborists. The court's clear-up rate is good. Its determinations are quick and relatively inexpensive. I point out in relation to public housing tenants that the legislation does not apply to disputes between public housing tenants because Housing New South Wales is the owner of both properties. It will be a matter for Housing New South Wales to address the issues.

In determining the meaning of "hedge", the court will adopt a commonsense view in its approach. The member for Ryde and the member for Dubbo queried why the new jurisdiction applied not to groups of trees but to trees that form a hedge. High, dense hedges are most likely to affect or block sunlight and views, and they were the most serious and most frequent concern raised in the course of the statutory review. This amending legislation is intended to target those hedges, not to capture single trees within the ambit of the legislation. To a greater or lesser extent, every tree blocks sunlight or screens a view. If orders to prune or remove any single tree can be sought solely on the ground of access to a view or sunlight, there would be considerable loss to the tree canopy across all urban areas of New South Wales. Obviously, that would be undesirable because trees provide numerous community and environmental benefits.

It should also be borne in mind that this legislation represents an incursion into the traditional tort of property rights. Common law has never recognised the blocking of sunlight or views as a form of nuisance. At common law, there is no right to a view. For these reasons the Government is taking a cautious approach to the extension of the jurisdiction. The Government's aim is to provide a dispute resolution process for the most problematic cases in which high, dense hedges on immediately adjoining private properties are blocking sunlight to, or views from, a dwelling. Any proposed extension to the new jurisdiction will be considered in the proposed two-year statutory review of the new part.

The bill gives effect to amendments recommended by the statutory review of the Trees (Disputes Between Neighbours) Act 2006 and in response to community and Government concerns raised in the review. The most notable amendment will be that the Land and Environment Court will be given the power to resolve disputes between neighbours over high hedges that severely affect views and sunlight. Neighbourhood feuds over hedges are becoming increasingly common. There even have been reports of residents growing what is referred to as spite hedges to deliberately block a neighbour's view. Up until presentation of this legislation, there has been no legal avenue to assist in resolving disputes relating to high hedges. That has resulted in tensions fomenting for years. The New South Wales Government is assisting to build community harmony by providing neighbours with a simple, accessible and inexpensive legal avenue for resolution of hedge disputes. I take pleasure in commending the bill to the House.

Question—That this bill be now agreed to in principle—put and resolved in the affirmative.

Motion agreed to.

Bill agreed to in principle.


Bill declared passed and transmitted to the Legislative Council with a message seeking its concurrence in the bill.