Archer v Mijailovic

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 14B, 14C, 14E, 14F

Texts Cited: Georges River Development Control Plan 2021

Category: Principal judgment

Parties: Nathan Archer (Applicant)
Nedad Mijailovic (Respondent)

Representation: Counsel:
N Archer (Self-represented) (Applicant)
N Mijailovic (Self-represented) (Respondent)

File Number(s): 2025/374922

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Penny and Nathan Archer (the Archers) own and live at a residential property in Oatley, within Georges River Council. Mr Archer (the applicant) has applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for their neighbour Nenad Mijailovic (the respondent) to prune a bamboo hedge planted on Mr Mijailovic’s property along the common boundary shared by the parties.

2. I viewed the bamboo and both properties at the onsite hearing. The parties were self-represented.

Pt 2A of the Trees Act applies to the bamboo

3. Mr Mijailovic planted bamboo in containers on his side of the dividing fence between the properties. He planted the bamboo to provide some privacy for both dwellings and to prevent overlooking from the applicant’s verandah into his kitchen and the pool at the back of his dwelling. Bamboo is a tree for the purposes of the Trees Act. The bamboo has been planted so as to form a hedge and is more than 2.5 metres tall, so Pt 2A of the Trees Act applies to the bamboo.

The applicant has made a reasonable effort

4. The parties have discussed the bamboo and were unable to come to an agreed solution. I am satisfied that Mr Archer made a reasonable effort to reach agreement and gave notice of the application as required by s 14C, passing the hurdle at s 14E(1) of the Trees Act.

Whether trees severely obstruct sunlight

5. The bamboo grows in the narrow corridor between Mr Mijailovic’s two-storey dwelling and the dividing fence. The Archers’ dwelling is just south of the common boundary. The bamboo is around 4 to 5 metres tall, but before Mr Mijailovic pruned it in June this year, it was as tall as his dwelling. Its upper foliage extends past the boundary; before it was pruned the taller culms hung well over the boundary, reaching the Archers’ dwelling.

6. Mr Archer claims that the bamboo obstructs sunlight to windows of his dwelling. Mr Mijailovic pointed to shadow diagrams showing that his dwelling obstructs sunlight to the Archers’ windows in winter, and in summer the bamboo would not obstruct sunlight to the south. The Archers submitted that the bamboo east of Mr Mijailovic’s dwelling obstructs morning sunlight in winter to several windows. Based on my observations, I accept this is the case. This would be the only sunlight available to those windows in winter, so the obstruction is severe. When the bamboo was taller than Mr Mijailovic’s dwelling, it would also have obstructed sunlight to the Archers’ windows at certain times of the year, especially as it hung over their property and reached their verandah.

7. The respondent’s bamboo severely obstructs sunlight to the windows of the applicant’s dwelling, passing the hurdle at s 14E(2)(a) of the Trees Act.

Matters considered

8. I have considered matters at s 14F of the Trees Act and discuss relevant matters below.

9. The bamboo is against, and hangs over, the common boundary, at times reaching the applicant’s dwelling.

10. At Appendix 8 of the Georges River Development Control Plan 2021, ‘pruning and reshaping of hedges’ does not require Council’s consent and bamboo is an exempt species.

11. Pruning the bamboo to restore the Archers’ access to sunlight could be done without taking away the bamboo’s contribution to privacy or reducing any other benefits it may provide. Both parties wish for privacy and both want to maintain some screening between the dwellings.

12. The bamboo obstructs sunlight to living areas of the Archers’ dwelling. While the duration of the obstruction might be relatively short, it is the only sunlight that would be available to those windows at certain times of the year.

Balancing of interests

13. Considering the above findings, the applicant’s interests in having the obstruction remedied outweigh any reasons to avoid interfering with the bamboo: s 14E(2)(b) of the Trees Act.

14. Mr Mijailovic submitted that he could maintain the bamboo at the level of his dwelling’s first floor, or about 3.6 metres above ground level south of his pool. The Archers submitted that they can maintain their side of the hedge if it is 3.5 metres in height or lower. Their ability to do this would help to resolve the dispute. I observed that anywhere between 3.0 and 3.5 metres should maintain privacy for both parties. To allow for regrowth, I will order that Mr Mijailovic prunes the hedge at 3.2 metres above ground level, measured from the ground south of his pool, twice each year, and the Archers can prune any overhanging bamboo back to the boundary as they see fit. Mr Mijailovic’s first pruning will be scheduled after the summer holiday period.

Orders

15. The Court orders:

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

17. Twice each year in February and August, beginning February 2026, the respondent is to prune, or engage a suitably experienced contractor to prune, the bamboo hedge adjacent to his southern boundary so that no part of the bamboo is greater than 3.2 metres above the level of the ground directly south of his pool.

18. The respondent is to give the applicant at least 2 days notice of each instance of the work in Order (2).

19. The applicant is to allow any access required to his property during reasonable hours of the day for each instance of the work in Order (2) to be completed.

20. The applicant is to prune any bamboo overhanging his property back to the dividing fence as he sees fit, but no more than twice each year.

21. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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