Brincat v Hancock

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) high hedges —­­ likely future severe obstruction of view from a dwelling — respondent’s reasonable desire for privacy — orders balance preferences of each party

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A, ss 7, 10, 12, 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, reg 4

Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Unsworth v Hennessy (2024) 263 LGERA 104; [2024] NSWLEC 82
Yang v Scerri [2007] NSWLEC 592

Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work (July 2016)

Category: Principal judgment

Parties: Edward Charles Brincat (Applicant)
John Edward Hancock (Respondent)

Representation: E Brincat (Self-represented) (Applicant)
J Hancock (Self-represented) (Respondent)

File Number(s): 2025/212565

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Edward Charles Brincat, the applicant, and John Edward Hancock, the respondent, share a rear boundary between their properties at Smiths Lake. Though Mr Hancock’s east-southeast facing dwelling is single-story, the property’s elevated location has availed the respondent with extensive views of Smiths Lake and the Tasman Sea framed by tall eucalypt trees.

2. Upon his occupation in 2017, Mr Hancock’s front and side yards contained a range of trees and shrubs, but the backyard was almost bare. Using his skills as a horticulturist, Mr Hancock transformed the backyard into a productive garden with a range of citrus trees and a chicken coop. He nurtured existing hedges and planted anew to enhance aesthetics and provide and maintain highly valued privacy for side neighbours and himself.

3. In April 2014, Mr Brincat purchased a vacant block of land behind the respondent’s property. In his affidavit of 3 June 2025 (affidavit), Mr Brincat stated that his wife and an architect from Sydney designed a two-storey dwelling, intended to “maximise the views of Smiths lakes [sic] and the ocean”. To this effect, the rear of the applicant’s two storey dwelling featured a high, broad deck across the upper level, adjacent to an open plan living area with tall glass doors and windows. The development was approved by Great Lakes Council (Council) in November 2014.

4. Construction commenced in March 2020 with excavation for a dwelling footprint, an inground pool and landscaping, across the width of the rear of the block. Photographs 9 and 10 on page 8 of the applicant’s Exhibit “ECB1” (exhibit), attached to his affidavit, showed that the excavation extended up to about 0.4 metres (m) from the common boundary, where it appeared at least 0.6m deep. The respondent claimed it exceeded 1m deep.

5. In an email to Mr Brincat on 4 April 2020, Mr Hancock warned, the “wall of remaining soil that runs the length of my back fence is only 35 to 40 centimetres wide. This is starting to crumble after recent rain. I am concerned that with more rain the soil wall will collapse. If this happens my fence will more than likely go with it. I sincerely hope not. However, if this was to happen you would have to incur the full expense of restoration including my fence. I am no Engineer [sic], but some shoring-up would be justified in my opinion”. In his reply of 5 April 2020, Mr Brincat drew attention to travel restrictions arising from COVID-19 but noted, “If anything happens to the fence I will bear the costs etc.”

6. The common boundary ‘Colorbond’ fence (the fence), subject of the application, became a source of ongoing conflict. Originally, all but 2 panels in the fence were 1.5m tall while 2 panels were about 1.4m. Between March and June 2020, contractors engaged and paid by the respondent increased the height of the fence to 1.8m. Mr Brincat alleged he was unaware such fencing works were being undertaken and had not agreed to the modification. In light of his warning email of 5 April 2020, when the fence partially blew over in late 2023, Mr Hancock expressed annoyance that Mr Brincat had not already stabilised the fence. Mr Hancock alleged that Mr Brincat subsequently acted unreasonably by prioritising works in his front yard ahead of required fence repairs.

7. Around late 2023, Mr Hancock visited Mr Brincat to seek a remedy for a sensor floodlight near the applicant’s first floor deck activating and disturbing his sleep. Mr Brincat noted that during this meeting he requested height reduction of the Tibouchina tree that was growing on the northern side of the respondent’s yard, “obstructing our view of the lake”.

8. In early 2024, Mr Hancock planted bamboo along two sections of his back boundary. Mr Brincat contended the bamboo was likely to block his view and damage his treated pine retaining wall, which was parallel with the common boundary and about 0.3-0.4m distant.

9. Mr Hancock responded to the applicant’s formal letter of 4 March 2025 which proposed extensive pruning with an offer to prune the bamboo to 3m tall and prune the Tibouchina to his roof height, at Mr Brincat’s expense. Mr Brincat considered the price to be excessive, and the respondent’s pruning proposal insufficient to satisfy his requirements. In essence, Mr Brincat wanted all the respondent’s trees and shrubs to be maintained around 2.5m tall, which Mr Hancock considered unacceptable.

10. Consequently, Ms Brincat made an application to the Land and Environment Court (the LEC/ the Court), pursuant to s 7 of Pt 2 and s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act).

The onsite hearing

11. The hearing was held onsite with both parties self-represented. Trees on Mr Hancock’s land were inspected initially. Mr Hancock clarified the identification of the various trees in the application in his ‘Defendant Submission’ (response) of 2 September 2025.

12. From above, Mr Hancock's dwelling was a reverse ‘L’ shape. The bottom of the L extended from the dwelling’s southwestern corner, about 1.5 m from the southern boundary, roughly northeast in line with the common boundary, and ended about 2-3m from the northern boundary. The stick of the L was shorter. It extended from the southwestern corner towards the east southeast.

13. The Tibouchina tree was near the northern boundary, where it shaded the respondent’s bedroom window at the northern end of the dwelling. Other windows in the respondent’s bedroom faced northwest towards the applicant’s dwelling, as did windows in a spare bedroom and service rooms.

14. The application included pruning of a dwarf Crepe Myrtle cultivar with deep red foliage planted close to the respondent’s dwelling in a front yard courtyard in 2019. Having entered his line of vision, Mr Brincat was concerned the Crepe Myrtle would grow to obstruct the centre of his water view.

15. Other trees proposed for pruning were a row of Sweet Viburnum’s east of the respondent’s chicken coop, which extended to the common boundary in the backyard’s northwestern corner, and all trees along the common boundary southwest of the chicken coop. From northeast to southwest, these trees comprised a row of Slender Weavers Bamboo, a Tahitian lime, a row of Slender Weavers Bamboo and a Honey Mercot mandarin. The rows of bamboo were 2-3m long.

16. Pruning was also proposed for a mature Murraya that extended southeast from the backyard’s southwestern corner, an Emperor mandarin against the western end of the dwelling’s back wall, and two rows of Lilly Pilly trees along the southern boundary. Lilly Pillies near the front corner of the respondent’s dwelling provided privacy between the respondent and his south side neighbours.

17. The Court moved to the applicant’s property for assessment of obstruction of views and sunlight to windows, and consideration of causes of fence instability. Though Mr Brincat had not nominated viewing locations in his Claim Details (High Hedges) form G, on site he nominated the first-floor deck, the adjacent open plan living and dining room at the dwelling’s northern end, and the master bedroom at the southern end. I classified the viewing locations V1-V3 respectively. Other than structural elements, the full width of the dwelling’s back wall comprised tall glass windows and doors. Windows of the “dormitory” at the southern end of the dwelling’s ground floor were assessed for obstruction of sunlight.

18. Oral submissions were undertaken in the respondent’s yard, with colleagues of Mr Hancock attending as observers.

Written submissions

19. Mr Brincat’s affidavit and exhibits and Mr Hancock’s response detailed the parties’ claims and positions. While both parties included allegations and examples casting aspersions on their opponent’s conduct, such submissions are irrelevant to the Court, beyond their contribution to the requirement of the applicant to make a reasonable effort to reach agreement with the respondent (s 10(1)(a) of Pt 2, and s 14E(1)(a) of Pt 2A of the Trees Act). Though Mr Hancock appeared indignant about aspersions Mr Brincat cast upon him, the judgment would not benefit from inclusion of Mr Brincat’s claims, nor Mr Hancock's responses.

20. Consequently, submissions considered important by a party may be omitted from the judgement without explanation, if they are deemed as irrelevant to the requirements of the Trees Act and the determination of the application.

21. Leading into the hearing, letters from Mr Brincat on 4 March 2025 and 4 April 2025 and respective responses from Mr Hancock on 19 March 2025 and 14 April 2025, succinctly encapsulated the party’s final positions.

Mr Brincat’s claim

22. Mr Brincat alleged the clumping bamboo had been planted along the rear boundary with the intention of obstructing his views. He claimed the bamboo was 6-7m tall, that it severely obstructed lake and ocean views from his dwelling’s first floor, and the view obstruction so caused would increase. He contended the bamboo was threatening to damage his property and the root system will continue to grow if action is not taken.

23. Mr Brincat alleged the Viburnum trees will severely obstruct the view and will eventually grow to 8m or more and further block his view of the lake and the ocean. He said the Tibouchina that was planted and maintained as a shrub by the previous owner, and allegedly by Mr Hancock until late 2022, had been allowed to grow into a tree. The applicant claimed the Tibouchina was blocking “our view of the lake the ocean and the surrounding area and was continuing to grow”.

24. The applicant was concerned that the situation would worsen. He reiterated having asked Mr Hancock to trim the Tibouchina tree due to growth above the height of the roof, which Mr Brincat then estimated to be 4-5m high. Mr Brincat said he told Mr Hancock, “[T]his shrub was blocking our view of the lake” and had “even offered to assist you with the trimming. You did not take me up on my offer and instead advised you would do it”. After the Tibouchina tree remained unpruned, Mr Brincat alleged it had grown to about 7-8m high and “6-7m in width and continues to grow”.

25. The applicant claimed the Tahitian lime tree growing behind one of the boundary fence posts was approximately 3.5m high. In the absence of a root barrier, he said the lime tree’s roots will, in time, affect “the fence and my treated timber retaining wall”. Mr Brincat suspected the roots had already affected both these structures. He contended “a root barrier is required to ensure the fence posts and my retaining wall are not affected by the roots of all the trees and plants installed by you on the boundary line and directly behind the boundary fence”. Mr Brincat stressed that the previous owner had not planted trees behind the boundary fence but only had small shrubs in the centre of the yard.

26. After Mr Hancock allegedly raised the fence height between March and June 2020 without consulting him, Mr Brincat alleged, “the increased fence height contributed to the fence being dislodged by a windy occasion in late 2023. I propped the fence to be structurally secure” and “was in the process of placing additional concrete to the fence post at my cost to permanently secure the fence”, which he claimed, “was not an easy job requiring an Acro prop, knowledge and the like”. Mr Brincat also noted having difficulty finding labour at the time to complete the task.

27. Mr Brincat claimed the respondent was unreasonably “telling me what I can and cannot do on my property” when Mr Hancock asserted that the boundary fence concreting should be prioritised ahead of other work Mr Brincat was undertaking in his front yard. In response, Mr Brincat noted that he had structurally secured the boundary fence at no cost to the respondent and that he was a qualified Bachelor of Civil Engineering. Mr Brincat added, “N.B. the fence after my work was completed has not moved, despite the additional height of the fence installed by you, without my consent or knowledge.”

28. Mr Brincat alleged that Mr Hancock had, “deliberately planted Lilly Pilly or similar plants behind your large chicken coop” and “deliberately not pruned this hedge and your existing shrubs and hedges around the property leaving them to grow to heights to further block our view of the lake and the ocean”.

29. The applicant claimed the respondent’s plants on the (common) boundary would block out the morning sunlight to our “ground floor dormitory (bedroom), where our children, their partners, and our grandchildren reside when here”, if the plants are “allowed to grow further”. Mr Brincat also claimed that the respondent had not pruned these plants and had instead installed more plants, which will “destroy our lifestyle of enjoying the views to the lake and the ocean and devaluing my property”.

30. Mr Brincat stressed this is a “formal request that within 21 days from receipt of this letter, for you to prune, to a height of 2.5m, all of the plants on your property that will and/or are affecting our view and provide a written undertaking that these plants will be constantly kept at the 2.5m height. If you do not take any action, or respond to this letter within 21 days, I will instruct my solicitor to commence an action against you in the LEC. I will be seeking an order to either have these plants removed or pruned to 2.5m in height to ensure our lifestyle, views, and value of our property are not affected by these plants …”

31. On 19 March 2025, Mr Hancock replied that he would not take any action that would harm the Tibouchina tree but offered to prune the bamboo to a height of 3m and prune the Tibouchina tree to his roof height, with the cost of $2000.00 to be paid by the applicant.

32. On 4 April 2025, Mr Brincat rejected Mr Hancock’s $2000.00 pruning proposal, claiming it was neither plausible nor logical that he should pay for works required to maintain and prune the respondent’s plants, caused by “deliberate actions to block our views of the lake”. Mr Brincat also considered $2000.00 to be exorbitant and estimated “these works would cost less than $1000.00. He reiterated that Mr Hancock’s actions have allowed his plants to turn into trees at their current height and thus the rectification cost should be borne by the respondent.

33. Mr Brincat added that Mr Hancock had not addressed all the plants detailed in his letter, which needed to be “pruned and maintained at a reasonable height of 2.5m that were previously maintained and now have been left to grow into trees”. Mr Brincat claimed that “the other red/ purple plant deliberately planted outside of your bedroom and adjacent to the kitchen area will also grow to the extent of the Tibouchina”. Additionally, he said Mr Hancock had not addressed the Lilly Pilly and Murraya trees on the southern side. Mr Hancock had identified the “red/ purple plant” as a Dwarf Crepe Myrtle.

34. The applicant alleged the respondent had “cherry picked” pruning of some of his plants but omitted others and had also failed to address the potential impact of the roots of the plants on the boundary “on the fence structurally and my treated pine timber retaining wall”. Mr Brincat emphasised the need for Mr Hancock to install a root barrier or remove these plants to “ensure no damage occurs to my property and the fence shared by the parties”.

35. The applicant concluded his letter by reiterating that Mr Hancock had not provided “a written undertaking that all of the plants on your property that is [sic] affecting our view, and light, will be maintained by you, to a reasonable height of 2.5m”. Mr Brincat offered the respondent a further 14 days to comply with these demands, after which he “will instruct our legal team to commence an action in the LEC and all costs for the proceedings will be sought against you.”

36. Under Pt 2 of the Trees Act, to remedy alleged damage to property, Mr Brincat proposed orders for:

1. “All trees trimmed to 2.5m.

2. Root barrier for trees on fence line”.

Under Pt 2A of the Trees Act, to remedy alleged severe obstruction of views from his dwelling and severe obstruction of sunlight to a window, Mr Brincat proposed:

1. “All trees trimmed to 2.5m.”

Mr Hancock’s response

37. Mr Hancock noted that the Tibouchina in the northern yard, and the Murraya and the Lilly Pilly trees along the southern boundary were growing on his property prior to his occupation. He rejected the claim that his vegetation severely blocked the applicant’s view and opined that, “this is an exaggerated and unsubstantiated allegation”.

38. Mr Hancock drew attention to significantly taller vegetation, particularly large eucalyptus trees located on neighbouring properties, that he contended had a far greater impact on the applicant's outlook than any plantings on his land. He noted that these taller trees, including those on properties to the applicant’s north, east and south, are visible in photographs submitted by the applicant, including a photograph of a neighbour’s eucalyptus tree being pruned at the applicant’s behest (exhibit, page 25).

39. Mr Hancock claimed Mr Brincat, “purchased a vacant block that, by its position and topography, could never have provided uninterrupted easterly views. If uninterrupted views were a priority, it would have been prudent for the plaintiff to acquire a property that naturally afforded such features”.

40. The respondent contested Mr Brincat’s claim of having “expansive views when you purchased your property in 2014”, because “your property was a vacant block surrounded by existing homes and gardens. You had no direct views of the lake or ocean, certainly not expansive ones. To suggest otherwise is misleading.”.

41. Mr Hancock said it was, “therefore, unreasonable for the plaintiff to now demand that I alter established plantings and garden arrangements - particularly when those plants existed prior to his development. Mr Hancock claimed his vegetation “is modest and in keeping with the character of the area”.

42. Mr Hancock submitted that he was nonetheless willing to compromise and had offered the trimming of certain plants. “However, I cannot accept the financial or physical burden of this work. I'm nearly 79 years old and no longer have the physical capacity for ladder work nor the financial means to meet the demands you're making. I consider the $2000.00 quoted for the works to be reasonable”.

43. With respect to Mr Brincat’s letter of 4 March 2025, Mr Hancock denied having “acknowledged that your plants are blocking our view” and said his pruning offer of 19 March 2025 was “a goodwill gesture, not an admission of fault or liability. It was offered in the hope of finding a peaceful resolution …”. Mr Hancock refuted that multiple trees and hedges on the respondent’s property severely blocked the applicant’s views or are threatening to damage the common boundary fence.

44. In his email of 14 April 2025 (the email), the respondent claimed the applicant’s dwelling “visually dominates surrounding properties, including mine”. Refuting Mr Brincat’s claim that he planted the bamboo purely to obstruct the applicant’s views, Mr Hancock said:

“Your suggestion that I planted vegetation solely to block your view is untrue. You enjoy clear sight lines over my roof which constitutes the majority of your view. I maintain that my garden does not obstruct your views in any meaningful way, nor does it interfere with your access to natural light”.

“All the small trees and shrubs you reference-excluding the bamboo-existed prior to your construction. These include the Tibouchina on the northern boundary the Murraya and Lily Pilly's [sic] on the southern side.”

45. Mr Hancock further stated:

“Plants naturally grow and mature over time, and it was your responsibility to factor in this additional vegetation during your design process. Your request that I prune inherently small trees to 2.5m is impractical and unreasonable. Your view will always be above my roofline. Suggesting otherwise is simply not logical. The Tibouchina on the northern boundary is a mature beautiful small tree that predates your construction. You were fully aware of its presence during your planning phase, yet you now demand it be reduced to roof height-effectively cutting it in half which would likely result in its death. This magnificent tree is the centrepiece of my garden and provides essential shade to my bedroom. To demand its removal or to threaten legal action over its continued existence is not only unreasonable but deeply disturbing.”

46. The respondent noted overshadowing of his back yard by the applicant’s dwelling, especially in winter, which reduced the productivity of his winter vegetables. Mr Hancock claimed his citrus trees did not obstruct the applicant’s view because they were only 2-3m tall. He noted carefully selecting and maintaining his plants for “beauty, privacy, and sustainability” and said his south side neighbours had asked that his Murraya tree be allowed to grow taller to soften the visual impact of the applicant’s dwelling and to “restore privacy to their bedroom”.

47. In the email, Mr Hancock said he planted clumping bamboo along the rear boundary to:

“create privacy, reduce the visual impact of your building, and shield my bedrooms from the intrusive glare of your lights, which have significantly affected the comfort and privacy of both myself, family and my guests”. “This bamboo is non-invasive, chosen specifically for its minimal root spread.” Under the Trees Act, “root spread alone is not grounds for dispute. Courts recognise that roots serve a stabilising function and may reasonably extend into neighbouring soil. You had ample opportunity during construction to install a root barrier or geo-fabric liner along the fence line, when access was most convenient. That this wasn't done is surprising especially considering your current concerns.”

48. In conclusion, Mr Hancock said, “I have taken the step of lodging an application with the Community Justice Centre (CJC) to seek mediation. I will notify you once I receive a response.” The respondent was subsequently advised that the CJC had insufficient funding to offer mediation.

49. Under Pt 2 of the Trees Act, regarding damage to property, Mr Hancock proposed the following (summarised) alternative orders:

1. The Tibouchina tree shall be trimmed to a height of 4m with the cost of works shared equally between the parties.

2. The applicant shall install a root barrier for trees on his side of the boundary fence to mitigate any future concern regarding root intrusion, with the cost of installation shared equally between the parties.

50. Under Pt 2A of the Trees Act, Mr Hancock proposed restricting intervention to the following (summarised) alternative orders:

The Viburnum hedge (east of the chicken coop) shall be maintained at a height not exceeding 3m, to preserve both parties’ privacy.

The Lilly Pilly hedge (front of dwelling) shall be maintained at a height not exceeding 3.5m, to preserve privacy with south side neighbours.

51. The application under Pt 2A of the Trees Act shall be assessed initially.

Jurisdictional requirements - Pt 2A

52. Pt 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court cannot make orders under Pt 2A unless it is satisfied that trees forming a hedge are causing a severe obstruction of sunlight to a window of a dwelling, or of views from the applicant’s dwelling. Even when this jurisdictional test is satisfied at s 14E2(a), before making any orders, the Court is required to balance a tree’s contextualised landscape significance and environmental contributions against the interests of the applicant and the imperative for intervention such as pruning.

53. Section 14A(1) of the Trees Act states:

14A 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).

54. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

55. Section 14C(1) of the Trees Act stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

56. Section 14D of the Trees Act specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

57. Section 14E of the Trees Act addresses matters of which Court must be satisfied before making an order, as follows:

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

58. Section 14E(2) is particularly significant. Section 14E(2) states:

(2) The Court must not make an order under this Part unless it is satisfied—

(a) the trees concerned—

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) 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.

59. If the Court is satisfied an obstruction is severe, at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of the following matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

60. Section 14F of the Trees Act: Matters to be considered by the Court

(a) the location of the trees concerned in relation to the boundary of the land on which the trees are situated and the dwelling the subject of the application,

(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,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction

(o) the amount, and number of hours per day, of any sunlight that is lost as a result of the obstruction throughout the year and the time of the year during which the sunlight is lost,

(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.

Findings

Do the trees form a hedge?

61. The first test at s 14A(1) is whether the trees are a hedge for the purpose of the Trees Act.

62. Five rows of trees on the respondent’s land satisfied the requirements of s 14A(1) of the Trees Act. The hedges comprised two short rows of Lilly Pillies along the southern boundary that were present prior to the respondent’s occupation, the Viburnum trees east of the chicken coop, and the two rows of bamboo. Pursuant to reg 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purpose of the Trees Act.

63. All the hedges had been closely planted in linear configurations to form privacy screens (s 14A(1)(a)) and the Viburnum trees also camouflaged the chicken coop. In each hedge, more than 2 trees exceeded 2.5m in height, thus satisfying s 14A(1)(b). Some bamboo stems were about 5-6m tall. Consequently, these 5 hedges engaged s 14A(1) of the Trees Act.

64. However, other trees nominated by Mr Brincat, comprising the Tibouchina, Crepe Myrtle, citrus, and the Murraya, were not members of hedges for the purpose of the Trees Act. Mr Hancock noted positioning and spacing trees with careful consideration of their likely mature sizes, prior to planting. Although the garden was lush and dense, each of the Tibouchina, Crepe Myrtle, citrus, and the Murraya tree had sufficient space to grow to near full size. Conversely, the hedge trees were planted much closer together, with spacings generally about 1/8 of the tree’s potential canopy spread. Planting a hedge of bamboo between existing citrus trees to enhance privacy does not render the prior planted citrus trees part of the hedge.

65. The Murraya at the rear of the southern boundary appeared ‘hedge like’ because it was about 4m long and had been clipped into a dense, rough rectangle. I initially presumed there were multiple trees forming a hedge but upon inspecting within the canopy, I found a single mature Murraya tree that likely long predated Mr Hancock’s occupation.

66. Ms Brincat owned his property and Mr Hancock’s property is situated on adjoining land. Therefore, s 14B of the Trees Act is engaged.

67. Section 14C(1)(a) of the Trees Act was satisfied as the applicant appropriately served the Tree Dispute Application with proposed orders on the respondent and Council.

Did the applicant make a reasonable effort to reach agreement?

68. Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Mr Hancock was offended by comments and allegations from Mr Brincat and challenged many of the applicant’s claims.

69. Section 14E(1)(a) of Pt 2A of the Trees Act contains the same requirement as s 10(1)(a) of Pt 2. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), an appeal decision under Pt 2, Preston CJ provided guidance about the ‘reasonable effort’ required to reach agreement; at [191]-[192]:

“Reasonable effort to reach agreement

191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that:

“[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.”: para 1.13, p 7.

192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33.”

70. Thus, the requirement at s 14E(1)(a) to make “a reasonable effort to reach agreement” does not prescribe an applicant’s conduct nor how they negotiate. Nor does it require parties to compromise.

71. Regardless of animosity between the parties, the applicant’s evidence before the Court included correspondence over at least 5 years, culminating in the salient letters and emails in reply during March and April 2025. Consequently, I am satisfied the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated such that s 14E(1)(a) of the Trees Act is engaged.

72. Mr Brincat also served the application in accordance with s 14C, and the Court allocated the final hearing date in satisfaction of the required 21 days’ notice. Therefore, s 14E(1)(b) of the Trees Act is also satisfied.

73. The next step is to assess the severity of obstruction of sunlight to a dwelling window or a view from the applicant’s dwelling by any or all of the trees in the hedges.

Is the sunlight obstruction severe?

74. Mr Brincat alleged the bamboo would, in the future, severely obstruct sunlight to relatively large windows in the dormitory at the southern end of the dwelling’s ground floor. As they faced east southeast, hypothetically, the windows could receive direct sunlight only until about 11am-12:15pm, depending on the season. However, as the windows were only about 9m from the rear boundary, the deep excavation of the back yard combined with the solid common boundary fence would obstruct early morning sunlight.

75. From around mid-spring through summer to mid-autumn, sunlight would impact the dormitory windows up to mid to late morning. However, from around late autumn through winter to early spring, the windows would most likely be shaded by about mid-morning by the wide deck above and to the north, due to the northern orientation of the sun’s arc. Mr Brincat’s winter solstice shadow diagrams at page 2 of the exhibit showed the dormitory windows entirely shaded by the back deck by 9am and by the applicant’s dwelling at midday and at 4pm. The shadow diagrams also displayed heavy shading of the respondent’s property during winter afternoons, which Mr Hancock alleged significantly curtailed his production of winter vegetables.

76. Currently, the bamboo was immature and sparse and was causing negligible obstruction of sunlight to the dormitory windows. Considering the significant obstruction of sunlight to the windows by the fence and the deck above, particularly during the cooler months when sunlight is generally most highly valued, even if the bamboo was taller and denser, I am not satisfied the marginal obstructive impact so caused would constitute a severe obstruction of sunlight to the dormitory windows. Therefore, s 14E(2)(a)(i) of the Trees Act is not engaged.

Is the obstruction of a view severe?

77. From the first-floor deck (V1) and adjacent living and dining rooms at the northern end of the dwelling (V2), and the south end master bedroom (V3), Mr Brincat enjoyed a broad view comprising Smiths Lake and the Tasman Sea framed by neighbours’ dwellings and vegetation in the middle distance and distant coastal landscapes.

78. While orders may be made under s 14D for hedges severely obstructing sunlight to a dwelling window or a view from a dwelling, the Trees Act provides no such remedy for amenity trees. Therefore, it is critical to distinguish between hedges and amenity trees for the purpose of the Trees Act.

79. As I explained at [64]-[65], the Tibouchina, Crepe Myrtle, citrus, and the Murraya were all individual amenity trees that did not satisfy the requirements of a hedge for the purpose of the Trees Act.

The bamboo hedges

80. The applicant’s deck and first floor were about 4m above ground level and the peak of respondent’s roof appeared to be about 5m above ground level. Although the bamboo was causing negligible obstruction of the applicant’s current view, due to its form, rapid growth rate, proximity, and location front and centre of the applicant’s coveted water view, I was satisfied the bamboo was likely to severely obstruct the view in the foreseeable future.

81. I was also satisfied the Court has the power to make orders in such circumstances. In the past, some ambiguity surrounded the Court’s power to make orders based on probable future severe sunlight or view obstruction, in the absence of a severe obstruction of same at the onsite hearing. Recently, Preston CJ addressed and clarified this issue in Unsworth v Hennessy [2024] NSWLEC 82 (Unsworth): from [28], which concluded:

“ …. On a proper construction, s 14E(2)(a) permits the assessment of the degree of obstruction of sunlight or a view as a consequence of the trees to be over a longer timescale. There are seven reasons”.

82. At [32], his Honour stated:

“The drafter’s choice to use the present continuous tense of the verb to obstruct in s 14E(2)(a) should be seen as purposive, the purpose being to address not only an obstruction that happens right now but also an obstruction that is going to happen in the future as a consequence of the trees concerned. This dual purpose could not be achieved if the drafter had used the present simple tense of the verb to obstruct. The present simple tense is used for an action or a state that happens right now. If the drafter had used the present simple tense of the verb to obstruct, s 14E(2)(a) would have been limited to obstructions of sunlight to a window of a dwelling or a view from a dwelling that happen right now, but not such obstructions that are going to happen in the future as a consequence of the trees concerned.”

83. At [50]-[51] of Unsworth, his Honour said:

“50 Fifthly, the precondition in s 14E(2), that the Court form the required opinions of satisfaction regarding the matters in paragraphs (a) and (b), is to the Court making an order under s 14D(1). The orders the Court may make under s 14D(1) are threefold: to remedy, restrain or prevent the severe obstruction. An applicant may make an application under s 14B seeking any one or more of these three orders. The inclusion in s 14B and s 14D(1) of an order to prevent a severe obstruction in addition to orders to remedy or restrain a severe obstruction is important. To prevent something is to keep something from happening. In the context of s 14B and s 14D(1), it is to prevent a severe obstruction of sunlight or a view from occurring as a consequence of the trees concerned. In contrast, in order to be able to remedy or restrain a severe obstruction, the obstruction must have already occurred and be occurring. But an order to remedy or restrain a severe obstruction will be ineffective for an obstruction that is yet to occur. This is the purpose of providing for an order to prevent. The applicant can seek under s 14B and the Court can make under s 14D(1) an order to prevent a severe obstruction occurring as a consequence of the trees concerned.

51 The words “are severely obstructing” in s 14E(2)(a) need to be construed in this context that an applicant can seek and the Court can make an order to prevent a severe obstruction of sunlight or a view occurring as a consequence of the trees concerned. The Court’s assessment of whether the trees concerned “are severely obstructing” can have regard to not only any obstruction that has occurred or is occurring but also any obstruction that will occur. The assessment of the severity of the obstruction under s 14E(2)(a) will vary according to when the obstruction occurs: backward-looking for obstructions that have occurred, present-looking for obstructions that are occurring and forward-looking for obstructions that are yet to occur. So too, the orders the Court may make will vary depending on when the severe obstruction occurs: orders to remedy or restrain a obstruction that has occurred and is occurring, and an order to prevent an obstruction that is yet to occur.”

84. Consequently, the bamboo cumulatively engaged s 14E(2)(a)(ii) of the Trees Act.

The Viburnum hedge

85. I was not satisfied the Viburnum trees were severely obstructing the applicant’s view as the applicant’s view path through and above the Viburnum trees was already obstructed by the roof of the respondent’s dwelling. The Viburnum trees were only about 2-3m from the rear boundary and about 3.15m tall. From V1 or V2, the applicant was looking down and over them. Even when they were 3.5m or 4m tall and denser, as was displayed in photographs in the exhibit, I am not satisfied the Viburnum trees would cause a view obstruction. Further, I was satisfied that their current height around 3.15m met Mr Hancock’s requirements for the Viburnum trees and there was no reasonable basis for Mr Brincat’s fear that the trees would grow to 8m. Considering Mr Hancock’s record of ongoing gardening, there was reason to expect the Viburnum trees to be maintained clear of the applicant’s view.

The Lilly Pilly hedges

86. Although the applicant alleged the Lilly Pilly hedges on the southern side of the respondent’s dwelling caused a severe view obstruction whilst sitting or lying down in the master bedroom (V3), I was not persuaded by this claim. To the contrary, I considered that the Lilly Pilly hedges caused minor to negligible obstruction of the applicant’s view.

87. Both Lilly Pilly hedges were about 2-3m long. One was beside the front of the respondent’s dwelling while the second was beside the dwelling, about 5m west of the front hedge. The second hedge, at about 2.8m tall, did not appear to obstruct any view as it was effectively concealed behind the front Lilly Pilly hedge. From the high vantage of V3, the second hedge appeared irrelevant and thus required no further assessment.

88. The front Lilly Pilly hedge was about 3.2m tall and had been about 0.3m taller. As with all the trees, the applicant wanted pruning to 2.5m while Mr Hancock preferred to maintain the hedge at the current level or a little taller to preserve privacy with his south side neighbours. Considering the long distance from V3 to the front hedge, the hedge caused little impact to the applicant’s overall view. Regardless of whether it was 2.5m or 3.5m tall, I was satisfied the front Lilly Pilly hedge caused no more than a minor obstruction of the applicant’s view. I will expand on my reasoning in consideration of s 14F(q); below at 98]-[100].

Balancing the impact of obstruction against the trees’ contributions

89. As the bamboo engaged s 14E(2)(a) of the Trees Act, before making any orders, the Court must be satisfied that Mr Brincat’s interest in preventing view obstruction by the bamboo outweighs reasons against intervening with the bamboo (s 14E(2)(b)). Matters to be considered in this balancing exercise are set out at s 14F of the Trees Act.

Relevant considerations at s 14F

90. The respondent planted his Lime tree in 2018 and planted hedges of bamboo either side of the Lime tree in 2024. The bamboo hedges were about 2-3m long and about 0.3-0.4m from the boundary. The Viburnum hedge extended roughly northeast to southwest in alignment with the bespoke tapered facing side of the chicken coop. The Lilly Pilly hedges were located along the southern boundary around the middle and the front of the respondent’s dwelling (s 14F(a)).

91. In the response, Mr Hancock clarified planting dates that were incorrect in the application. While the Lilly Pilly trees were in situ prior to his occupation, Mr Hancock planted the Viburnum trees in 2019 (s 14F(b)).

92. The bamboo grew to a height of more than 2.5m after the applicant occupied his dwelling in 2021 (s 14F(c)).

93. A Council permit would ordinarily not be required for pruning the hedges (s 14F(d)).

94. Section 14F(k) requires consideration of the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees. The bamboo may be pruned quite regularly without obvious negative impact provided it receives appropriate water and nutrition and retains sufficient foliage for photosynthesis. Best practice pruning recommendations include retention of new canes until they extend and develop two top leaves. Relatively frequent pruning of young plants would likely increase foliage density and enhance privacy.

95. Section 14F(l) considers any contribution of the trees to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated. Mr Hancock indicated that the bamboo was intended to provide privacy by mitigating the impact of unusually invasive overviewing from the applicant’s dwelling and deck and enhance the amenity of his land by softening the impact of the respondent’s development. Privacy is the most common respondent concern in matters under Pt 2A of the Trees Act.

96. Mr Hancock noted the applicant’s view was considerably obstructed by the roof of his dwelling and by large Eucalyptus trees in neighbouring properties (s 14F(m)).

97. The trees are evergreen but ordinarily thin out in winter (s 14F(p)).

98. Section 14F(q) considers the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view.

99. In Haindl v Daisch [2011] NSWLEC 1145 (H**aindl), Moore SC and Hewett AC established an interpretation of the words ‘a view’: at [26]-[28],

“[26] However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.

[27] We give a clear example in the present application, discussed in more detail later in our analysis concerning this location. When standing on the bedroom balcony looking outward, the panoramic single view able to be observed from this point:

commences, to the south, with the ridgeline of the kitchen/family room wing of the applicants' house; and

turning the eyes from south toward north, proceeds to encompass views towards the Harbour Bridge and those suburban elements in that foreground; then

the trees that are the subject of this application; and

finally, the entire panorama of the district topography and suburban built form of elements of North Sydney and Mosman from the northern end of the trees through more than 90 degrees to, effectively, the north through the northern open end of the balcony.

[28] For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction…”

100. When the analysis from [27] of Haindl is applied to Mr Brincat’s views from V1-V3, the panoramic single view from north-east to south-southeast spanned more than 120 degrees. It comprised lake and ocean views, land-water interface, and native and exotic vegetation. The view included large trees in nearby gardens and streets, many of them Eucalypts which framed the central water views. This interpretation of the words ‘a view’, consistently followed by the Court, provides the rationale for my finding that the distant front Lilly Pilly hedge represented a very minor component of the applicant’s overall view. Whether the front Lilly Pilly hedge was 2.5m or 3.5m tall was largely irrelevant. At either height, the hedge barely obstructed Mr Brincat’s overall view.

101. Conversely, though the two bamboo hedges were currently immature, they were proximal and directly in front of V1 and V2. The desired view obstructed by the bamboo was of Smiths Lake and the Tasman Sea.

Summary

102. I was satisfied that Mr Brincat’s first floor deck and adjacent living areas were the family’s primary living spaces. Cumulatively, the bamboo hedges were located in the centre of the applicant’s coveted water view. Currently, the bamboo averaged around 5m tall with sparse foliage and was not causing any genuine view obstruction. However, this was likely to be transitory. With a naturally rapid growth rate, likely enhanced by sound horticultural practices, an expectation of a dense foliage screen reaching at least 8m in height is reasonable and likely. Without intervention, the bamboo would almost certainly grow to severely and persistently obstruct the applicant’s key views, within 2-3 years.

103. Concurrently, oversight of the respondent’s rear yard and dwelling from the applicant’s dwelling and deck was particularly invasive. It was unsurprising that Mr Hancock sought to enhance privacy.

104. Consequently, orders shall be made for a pruning maintenance programme that prevents severe view obstruction by the bamboo whilst maximising the respondent’s privacy. The orders shall specify a maximum pruning height that maintains the applicant’s view above the respondent’s roofline, with pruning to be undertaken twice per year.

105. An expectation to prune the hedges to provide all possible views from all possible locations at all times is unreasonable, particularly considering the applicant’s potential viewing locations spanned the width of the dwelling.

Jurisdictional requirements - Pt 2

106. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.

107. The Court is obliged to consider various matters pursuant to s 10 of the Trees Act.

108. Section 10(1)(a) of the Trees Act, requiring a reasonable effort by the applicant to reach agreement with the owner/s of the land on which the trees are located, is satisfied. It is identical to the requirement already met at s 14E(1)(a) of Pt 2A of the Trees Act. Similarly, s 10(1)(b) is satisfied, as it is the same requirement of service of application with notice satisfied at s 14E(1)(b) of Pt 2A of the Trees Act.

109. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree concerned has caused, is causing, or is likely in the near future, to cause damage to the applicants’ property (s 10(2)(a)), or is likely to cause injury to any person (s 10(2)(b)).

110. If s 10(2) is satisfied, the Court is required to consider the discretionary matters at s 12 of the Trees Act. This provides for consideration of the bamboo’s contributions and benefits relative to the imperatives that inform intervention.

111. Mr Brincat made no claim of past or current damage, nor of injury. However, Mr Brincat alleged that increased wind loading due to the fence height increase by Mr Hancock without a commensurate increase in post depth to maintain fence stability resulted in likely future damage. The applicant also contended that bamboo and citrus tree roots near the common boundary were likely to damage the retaining wall, and that Mr Hancock should be ordered to install a root barrier.

Findings

The fence

112. Most of the common boundary Colourbond fence was originally 1.5m tall while two panels closest to the northern corner were about 1.4m. I understood the height difference accommodated Jacaranda branches overhanging from the applicant’s north side neighbour’s property.

113. Mr Hancock claimed that standard panels 0.3m high were installed to increase the fence height from 1.5m to 1.8m. The height of the two 1.4m panels at the northern end was increased by about 0.4m to achieve height consistency. Alternatively, Mr Brincat alleged that Mr Hancock increased the fence height by 0.45-0.5m to about 1.95m.

114. Regrettably, I didn't measure the height of the fence. However, I preferred the respondent’s contention that the original fence comprised standard 1.5m tall panels and that standard 0.3m panels were added (plus 2 x 0.4m tall) resulting in a standard fence 1.8m tall. Mr Hancock’s claim was substantiated by photographs at p 20 of the response, which displayed the uniform height of fences which met at the three way junction of the parties’ common boundary fence with the common boundary fence between Mr Brincat and his south side neighbour, and the common boundary fence between Mr Brincat’s south side neighbour and Mr Hancock's southside neighbour. Each fence was the same colour and the same height.

115. At p 10 of the exhibit, the applicant included a diagram and calculations of extra wind loading on the raised fence with heights indicated as 1.5m for the original fence and 0.45m for the fence extension. However, the scale of the diagram displayed the ratio of the height of the fence extension to the height of the original fence as precisely 1:5 = 0.3:1.5 (m).

116. Nonetheless, Mr Brincat applied an apparently exaggerated extension height of 0.45m in his calculation of extra wind loading on the fence rather than the ostensibly correct height extension of 0.3m. Consequently, Mr Brincat calculated that the extension caused 68% increased wind loading on the fence, rather than an increase approximating 43%, based on the more likely extension height of 0.3m.

117. Using the apparently exaggerated height extension of 0.45m, Mr Brincat calculated that the fence’s below ground post depth needed to be increased from the current 0.45-0.5m to 0.65m to maintain stability in response to the additional wind loading. Noting strong coastal winds that often impact the area, Mr Brincat claimed that fence damage was thus likely to result from wind throw.

118. I was not persuaded by Mr Brincat’s argument for the following reasons. At s 10(2)(a) of the Trees Act, “the Court must be satisfied that the tree concerned has caused, is causing, or is likely in the near future, to cause damage to the applicants’ property”. Crucially, Mr Brincat’s claim was based on likely fence damage due to increased and excessive wind loading force, not due to “the tree concerned”. Consequently, fence damage caused by wind does not engage the jurisdiction at s 10(2)(a).

119. Even without the jurisdictional flaw in the applicant’s argument, above at [118], I was not satisfied that fence damage was likely in the near future. The ‘near future’ is defined, as a rule of thumb, to be a period of one year following determination of a matter (Yang v Scerri [2007] NSWLEC 592: at [14]). I accepted the respondent’s argument that the original fence was likely to have been well constructed as it had been installed by a licenced builder who was the then owner of the respondent’s property. I also agreed with Mr Hancock that, notwithstanding strong coastal winds, the fence was sheltered by surrounding dwellings and vegetation and was unlikely to be exposed to extreme winds.

120. I am satisfied that the partial fence failure in 2023 primarily resulted from the applicant’s excavation and removal of naturally compacted site soil to a depth of at least 0.6m which was below the bottom of the fence posts, and subsequent erosion. In response, Mr Brincat maintained that he had structurally secured the boundary fence at no cost to the respondent and noted that he was a qualified Bachelor of Civil Engineering. In correspondence to Mr Hancock, Mr Brincat stated, “N.B. the fence after my work was completed has not moved, despite the additional height of the fence installed by you, without my consent or knowledge.”

121. Even if supplementary works were needed in compensation for relatively shallow posts, I was not convinced that the works involved in shoring up the fence posts was as specialised or complex as claimed by Mr Brincat. Such works are regularly completed by people with lesser or no engineering qualifications who follow the manufacturers specifications. Therefore, the applicant’s claim of damage to the fence by wind throw is dismissed.

The root barrier

122. I am not satisfied that damage by bamboo or citrus tree roots is likely in the near future or that the installation of a root barrier by the respondent is necessary nor reasonable.

123. The respondent’s citrus trees and bamboo and the applicant’s retaining wall were each about 0.3-0.4m from the common fence line. The lime and mandarin were relatively small citrus varieties which were planted around 2018. Roots from these trees may occupy some of the zone between the fence and the applicant’s treated pine retaining wall, but as noted by the respondent, it is a common and usual occurrence for both roots and branches of trees to encroach beyond boundaries.

124. Unless such encroachment has caused, is causing, or is likely to cause genuine damage or risk of injury that satisfies s 10(2) of the Trees Act, there is no remedy under the Trees Act for such encroachment by roots or branches. The applicant’s retaining wall appeared to have been well constructed and no arboricultural evidence was submitted to support the applicant’s claim. Consequently, I was not satisfied that primarily fibrous roots of the relatively small citrus trees were likely to cause fence or retaining wall damage in the near future, or even the medium term.

125. The bamboo had been planted quite recently, and its roots were sparse and appeared largely confined to the respondent’s land. Nonetheless, roots of the clumping bamboo would ordinarily spread gradually but progressively where environmental conditions allow. Contrary to Mr Hancock’s contention, Slender weavers bamboo can be invasive. It does have the capacity to cause fence and or wall damage in the medium term. Under the circumstances here, where the bamboo was immature, accessible, and restricted to two short rows well clear of the boundary, I recommended regular monitoring and root pruning to prevent encroachment into the applicant’s land. Additionally, a trench about 0.3m deep and 0.2m wide could be excavated behind the bamboo to assist with monitoring new root growth. While the success of such a program requires vigilance and ongoing maintenance, given Mr Hancock’s regular gardening activity and the obvious incentive to prevent root damage, a successful outcome is likely.

126. Consequently, I am not satisfied that roots of either the citrus trees or bamboo are likely to cause near future damage to the applicant’s retaining wall, or the fence. Therefore, the Court has no power, nor good reason, to make orders for root barrier installation by the respondent.

127. Considering the close proximity of Mr Brincat’s deep excavation to the common boundary, his considerable concerns about future fence and wall damage, and the pre-existence of the citrus trees, I concur with the respondent that Mr Brincat appears to have missed an opportunity to efficiently insert a root barrier on his side of the boundary prior to the construction of his retaining wall.

Conclusion

128. For the application under Pt 2A of the Trees Act, I am satisfied the respondent’s bamboo hedges are likely to cause severe obstruction of the applicant’s view in the foreseeable future and that orders shall be made to prevent such severe obstruction. However, I am also satisfied that the potential severe view obstruction by the bamboo is only relevant above the respondent’s roofline. Therefore, the bamboo may be maintained below the respondent’s roofline but sufficiently high to provide highly valued privacy for the respondent.

129. From the applicant’s nominated first floor viewing locations, a hedge of Viburnum trees was too low to cause obstruction of the view. Considering the applicant’s regular garden maintenance and the privacy and amenity roles the Viburnum trees performed, I was satisfied they were unlikely to grow sufficiently tall to cause future view obstruction. A hedge of Lilly Pilly trees south of the front of the respondent’s dwelling was relatively small and distant from the applicant’s viewing locations such that it caused negligible to minor obstruction of the applicant’s overall view. A second small Lilly Pilly hedge caused no view obstruction to the applicant as its obstructive impact was effectively subsumed by the front hedge.

130. The other trees that Mr Brincat proposed for pruning, comprising the various citrus, the Tibouchina, the Crepe Myrtle, and the Murraya, did not satisfy the requirements of s 14A(1). Therefore, they were not members of a hedge for the purpose of the Trees Act. Rather, they were individual amenity trees, for which no remedy is available under the Trees Act for obstruction of sunlight or views.

131. There is no imperative for the Court to make orders for pruning at a height proposed by an applicant. Many past cases include orders for pruning that provide for ongoing healthy tree growth and respondent priorities such as privacy as well as addressing severe sunlight or view obstructions. Consequently, the bamboo shall be pruned by the respondent or a contractor employed by the respondent, at the respondent’s expense, twice per year. As the bamboo is largely dormant through winter and early spring, optimum amenity is gained by pruning in May after growth has largely paused and in mid-December after strong spring growth but before the holiday season. The bamboo shall be pruned to a maximum height of 4.2m.

132. Under Pt 2 of the Trees Act, I was not satisfied that the respondent’s trees were likely to cause the alleged fence or retaining wall damage in the near future. Although it is regrettable if Mr Hancock failed to consult Mr Brincat prior to raising the height of the fence, the fence did not appear to exceed the height of a standard fence. Further, the raised fence’s height was consistent with the height of neighbouring fences, including Mr Brincat’s adjoining south side fence.

Orders

133. The Court orders are:

134. The respondent shall engage and pay suitably qualified arborists, horticulturists, or similar contractors with appropriate insurances (the contractors) to prune the bamboo along the common boundary to a maximum height of 4.2m above ground level, within 45 days of the date of these orders.

135. In May and mid-December of 2026, and in May and mid-December of each subsequent year, the respondent shall engage and pay the contractors to prune the bamboo along the common boundary to a maximum height of 4.2m above ground level.

136. The applicant shall provide all required access for undertaking the pruning works or for clearing debris, upon receipt of 72 hours’ notice from the respondent by email.

137. The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

138. All pruning works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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