Amvrazis v Xu [2026] NSWLEC 1213

Judgment

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

Background

1. COMMISSIONER: Sixteen Leyland cypress trees (Cupressus × leylandii) (the trees) are planted in a straight row along the rear boundary of the West Pennant Hills property belonging to Hongxia Xu. Elizabeth Amvrazis lives on the adjoining property downslope and to the south of Ms Xu. The trees cast shade onto Ms Amvrazis’ property. Ms Amvrazis has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the trees to be reduced in height and maintained at the lower height.

2. The final hearing took place onsite, allowing me to observe the trees and relevant issues at both properties.

3. The Court’s determination in this tree dispute must be made within the framework of the Trees Act, which enables the Court to make orders to remedy, restrain or prevent the obstruction of sunlight caused by trees, but also limits the Court’s jurisdiction to do so. Relevant sections of the Trees Act are considered and determined in this judgment.

The trees

4. Sixteen cypress trees are planted in a straight row at close and regular spacings. They are 6–7 metres tall. Their foliage forms a continuous screen along Ms Xu’s southern boundary. The trees are planted so as to form a hedge (the hedge), and are more than 2.5 metres tall. Pursuant to s 14A(1) of the Trees Act, Pt 2A of the Act applies to these trees.

Orders sought relate to trees on adjoining land

5. Pursuant to s 14B of the Trees Act, Ms Amvrazis seeks orders to remedy, restrain or prevent the trees severely obstructing sunlight. The trees are situated on adjoining land.

Notice of the application

6. I am satisfied that Ms Amvrazis gave notice of the application as required at s 14C of the Trees Act.

Nature of the orders

7. Orders for pruning and ongoing maintenance of the hedge are orders the Court can make at s 14D of the Trees Act. However, the Court is not required to make the orders Ms Amvrazis seeks, but can make orders as it sees fit to remedy restrain or prevent a severe obstruction of sunlight caused by the trees, having considered all relevant parts of the Trees Act.

Reasonable effort to reach agreement

8. Pursuant to s 14E(1) of the Trees Act, the Court is not to make an order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the trees’ owner. Ms Amvrazis or her husband discussed the trees and their shading with Ms Xu, asking that the trees be trimmed. Ms Amvrazis submits that Ms Xu refused their requests. I am satisfied that Ms Amvrazis made a reasonable effort to reach agreement with Ms Xu.

The trees severely obstruct sunlight

9. Ms Amvrazis claims that the trees obstruct sunlight to her property. Before the Court can make an order in these proceedings, it must be satisfied that the trees are severely obstructing sunlight to a window of Ms Amvrazis’ dwelling: s 14E(2)(a)(i) of the Trees Act.

10. Ms Amvrazis submits that her biggest issue with the trees is that they shade her back garden. This makes the garden damp year-round. Her grandchildren play there and get wet and covered in mud. Her clothesline is in shade. The damp affects the health of her family.

11. Ms Xu submits that orders under Pt 2A of the Trees Act can only be made where trees obstruct sunlight to windows, not to other elements of the property. Ms Xu provided an aerial photograph showing the hedge’s shadow extending only partly across Ms Amvrazis’ garden, not reaching the dwelling. The photograph was taken recently, perhaps in February or March.

12. During the onsite hearing, I observed the hedge’s shadow at approximately 1:30 pm on 15 April. The shadow reached into a covered patio area on Ms Amvrazis’ property, just east of a playroom. When I stood on the northern edge of the covered patio in line with the playroom’s northern wall, my head was in the hedge’s shadow. The playroom’s northern window was in sunlight, but two or so hours earlier, with the sun further east and the hedge’s shadow further west, the hedge’s shadow would have extended to my head height on the window, covering more than half the window. The winter solstice is over two months away. By my reasoning, the hedge’s shadow would obstruct sunlight to all of the playroom’s window for most of the day throughout winter, when sunlight is most in demand in such a room. I conclude that the trees severely obstruct sunlight to a window of Ms Amvrazis’ dwelling. I pointed this out to Ms Xu during the hearing.

13. Ms Xu’s aerial photograph shows the hedge’s shadow in summer, when it does not reach Ms Amvrazis’ dwelling. By autumn, at the time of the hearing, the hedge’s shadow does reach the dwelling. During winter, the hedge’s shadow falls across Ms Amvrazis’ playroom window throughout most of the day.

14. I am satisfied that the trees severely obstruct sunlight to a window of Ms Amvrazis’ dwelling: s 14E(2)(a)(i) of the Trees Act. Further to that test, at s 14E(2)(b), the Court must not make an order unless it is satisfied that “…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 suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.” I will determine s 14E(2)(b) after considering matters at s 14F.

Consideration of relevant matters

15. The Trees Act includes at s 14F a range of matters that the Court must consider before determining an application made under Pt 2A. Those matters that are relevant to this decision are considered here.

16. The hedge is close to the common boundary. The trees’ foliage forms a dense screen along Ms Amvrazis’ northern boundary, upslope from her dwelling.

17. Consent from The Hills Shire Council (Council) would not be required to remove the trees. Leyland cypress is included in a list of trees that can be removed without Council’s approval.

18. When Ms Amvrazis moved to her property in 2011, the previous owner of Ms Xu’s property maintained the trees as a hedge at a lower height that caused no issue for Ms Amvrazis. After Ms Xu bought her property in 2014, the trees were no longer maintained and grew to obstruct sunlight to Ms Amvrazis’ property. After some discussions, Ms Xu had the trees pruned once in 2022. By then, the trees were much taller and could not be pruned back to their original height without adverse impacts, so were reduced only slightly in height. The trees have not been pruned since.

19. The trees have no environmental or social significance. They are an exotic species and do not contribute to the local ecosystem. They do not contribute to public amenity.

20. Ms Amvrazis submits that she wants the trees pruned sufficiently to restore sunlight to her property. Ms Xu submits that an arborist told her that the trees would not tolerate having more than 10% of their foliage removed. I know that the species responds well to regular minor pruning, as happens with hedging, but does not tolerate severe pruning. Reducing the trees sufficiently to restore sunlight to Ms Amvrazis window would leave unattractive trees with no foliage at their tops. Even though Ms Xu said she would prefer this to removing the trees, it would be a poor outcome that should be avoided.

21. Ms Xu values the trees for privacy and outlook from her dwelling. She took the Court to south-facing windows on her first floor. The trees provide a screen between her dwelling and Ms Amvrazis’ dwelling, but I noted that trees only 3 metres tall would adequately screen the dwellings.

22. Nothing other than the trees contributes to the obstruction of sunlight to the playroom window.

23. Ms Amvrazis has repeatedly requested that the trees be pruned. Ms Xu had the trees pruned once in 2022, but they have otherwise been left to grow much taller than they were when she purchased her property.

24. The trees obstruct sunlight to the playroom window for most of the day throughout winter. The playroom is used by Ms Amvrazis’ family in winter. The trees are evergreen.

25. I explained to Ms Xu that pruning was not an appropriate solution. Ms Xu said that if the trees are removed she would not want to replace them. She said she would have trouble affording the cost of tree removal.

Balancing of interests

26. Pursuant to s 14E(2)(b) of the Trees Act, I am satisfied that Ms Amvrazis’ interest in having the sunlight obstruction removed outweighs any reasons to avoid interfering with the trees. Pruning would ruin the trees, so they will be removed. Considering Ms Xu’s submission on covering the cost of tree removal works, she will be given 60 days to remove the trees rather than the usual 30 days. An order will be made to restrict the height of any replacement hedge should she change her mind about replanting along her southern boundary. Access should not be required to Ms Amvrazis’ property for tree removal works.

Orders

27. The Court orders:

28. The application is granted to the extent of the following orders.

29. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the row of cypress trees forming a hedge along her rear boundary to within one metre of ground level within 60 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

30. If the respondent plants a replacement hedge near her rear boundary, the trees must be maintained at a height no greater than 3 metres above ground level.

31. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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