Irwin v Washer

Category: Principal judgment

Parties: Adrian Irwin (Applicant)
Bernie Washer (First Respondent)
Lilian Washer (Second Respondent)

Representation: Counsel:
A Irwin (Self-represented) (Applicant)
B Washer (Self-represented) (First Respondent)
B Washer (Agent) (Second Respondent)

File Number(s): 2025/205517

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Adrian Irwin (the applicant) has owned his Eleanor Heights property since 2009. He has applied to the Court pursuant to s 14A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the removal of a bamboo hedge on a neighbouring property belonging to Lilian and Bernie Washer (the respondents). Lilian Washer was not named in the application, so she is joined here as the Second Respondent to these proceedings. The Washers have recently pruned the hedge and would prefer to maintain it at a manageable height. The hearing took place onsite, allowing the Court to view the hedge and related issues of views and privacy at both properties. Mr Irwin was self-represented; Mr Washer represented himself and his wife.

Framework for this decision

2. The Washers’ bamboo is planted to form a hedge that is more than 2.5 metres tall. Bamboo is a tree for the purposes of the Trees Act: s 4 of the Trees (Disputes Between Neighbours) Regulation 2024 (NSW). The trees are not on Crown land. Therefore, Pt 2A of the Trees Act applies to the bamboo: s 14A of the Trees Act.

3. Pursuant to s 14B of the Trees Act, Mr Irwin has applied for orders to remedy and prevent the bamboo’s obstruction of sunlight to, and views from, his property. The orders he seeks are orders the Court can make at s 14D. The Court can only make orders if satisfied at s 14E of the Trees Act, that:

4. the applicant has made a reasonable effort to reach agreement with the respondents and given the required notice of the application, and

5. the trees severely obstruct sunlight to a window of the applicant’s dwelling or a view from his dwelling, and

6. the applicant’s interests in remedying the obstruction outweigh any reasons to avoid interfering with the trees.

7. The Court must consider matters at s 14F of the Trees Act before determining the application.

The applicant has made a reasonable effort to reach agreement

5. Copies of correspondence that Mr Irwin included with his application demonstrate that he has made a reasonable effort to reach agreement with the Washers. The timeframe set down for the final hearing has allowed for the required notice of the application.

The trees do not obstruct sunlight to a window

6. If orders are to be made on the basis of sunlight obstruction, the trees must severely obstruct sunlight to a window of the applicant’s dwelling: s 14E(2)(a)(i) of the Trees Act. Mr Irwin claims only that the bamboo obstructs sunlight to his back yard. The Court’s onsite observations showed that the bamboo does not obstruct sunlight to Mr Irwin’s windows. Therefore, no orders can be made on this element of the application.

The trees severely obstruct a view

7. The view from the back of Mr Irwin’s dwelling is the property’s principal view. It includes an ocean view available over the Washers’ dwelling. The Washers’ bamboo grew to a height that obstructed most of the ocean view. I am satisfied that the bamboo severely obstructs the view from Mr Irwin’s dwelling.

Weighing of interests

Submissions

8. Mr Irwin submitted that the ocean view was the main reason for purchasing his property. He provided photographs showing that the view was available when he came to his property. The bamboo has grown to obstruct the view during his occupation of the property. Mr Irwin appreciates the amenity and privacy that the bamboo provides to the Washers, but submitted that these could be maintained with a shorter hedge.

9. Mr Washer submitted that he and his wife enjoy the bamboo’s benefits: privacy screening for their dwelling and garden, and the contribution it makes to their landscape. He has pruned the bamboo since these proceedings commenced and is willing to maintain the bamboo at its current height.

Findings

10. I have considered the matters at s 14F of the Trees Act. The bamboo hedge encloses the Washers’ back garden, creating a sense of privacy there. It screens their ground floor windows, preventing overlooking from Mr Irwin’s dwelling. At its reduced height, it does not screen the one bedroom window on their first floor, but that window can be seen from other properties. An expectation of complete privacy in this suburban area might be unreasonable.

11. The bamboo continues to provide its benefits to the Washers at its reduced height, approximately 4.5 metres, which allows for ocean views from Mr Irwin’s dwelling. Mr Irwin originally stated that a height of 5 metres would restore his view. Mr Washer suggested he might prune it lower than that, and has done so. In my mind, pruning to a height of 4 meters would allow for some regrowth between pruning events, while maintaining privacy for the Washers’ ground floor windows. Pruning twice a year would prevent the obstruction recurring. Bamboo culms close to the boundary eventually droop over Mr Irwin’s property, so the pruning orders will include removal of any bamboo overhanging the boundary. Pruning as ordered below will not adversely impact the bamboo. The Washers will not require council consent to carry out the orders.

Orders

12. The Court orders:

13. Lilian Washer is joined as the Second Respondent.

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

15. Twice each year in April and October, beginning October 2025, the respondents are to prune, or engage a suitably experienced contractor to prune, the bamboo hedge that forms an L-shape at the rear of their property so that it is no more than 4 metres above the top of the sleeper wall retaining the garden bed in which the bamboo grows, and to remove any bamboo culms that overhang the applicant’s property.

16. On at least 2 days notice from the respondents, the applicant is to grant access to his property as required during reasonable hours to complete the works in Order (2).

17. The exhibits are returned other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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