Ong v Murray

The onsite hearing

1. The onsite hearing on 5 September 2024 commenced at 9:00 with an inspection of the bamboo and the respondents' dwelling and yard whereby privacy and aesthetic factors were considered. The Court next inspected and assessed the hedge's obstruction of sunlight to the applicant's nominated windows of his dwelling, prior to oral submissions. Mr Sloan, Solicitor, represented Mr Ong while the respondents were self-represented.

Applicant's Proposed Orders:

1. Mr Ong proposed the Court make the following (summarised) orders: The respondents shall cause the bamboo hedge on their southern boundary to be pruned to a height no greater than 2.5 m measured from the base of each tree, within 14 days. Thereafter, the respondents shall maintain the bamboo hedge at a height no greater than 2.5 m above ground level, measured from the base of each tree. Such further or other orders as the Court sees fit.

Respondents' Proposed Alternative Orders:

1. Mr Murray and Ms Formosa proposed the Court make the following (summarised) alternative orders: The applicant shall pay all legal costs incurred by the respondents. The applicant shall not "come back again regarding this issue" after the Court determines the application. All bamboo along the respondents' southern boundary shall be pruned to a height equivalent to the top of the applicant's middle level (ground floor) windows and re-pruned at this height annually. The cost of such pruning shall be equally apportioned between the parties. The louvres on the two upper-level windows (first floor) shall not be removed by Mr Ong, any future owner of the property, or anybody else, particularly if the bamboo is pruned. The tree in the north-east corner of the applicant's land, referred to in the applicant's lawyer's communication of 8 May 2024, may be maintained at its current height, but the tree's height shall not be reduced below its current level. The parties shall formally agree to the above orders.
2. The applicant contended the DA conditions of consent imposed by Council had addressed and mitigated all reasonable privacy concerns of the respondents. Though Mr Ong acknowledged the respondents' offer to prune the height of the bamboo to the top of the ground floor windows, he repeatedly noted this height was insufficient as it failed to resolve sunlight obstruction to the lower ground floor windows. In response to the respondents' privacy concerns, Mr Ong claimed he could not view into the respondents' south facing ground floor bedrooms and that the respondents' recently planted extension of the bamboo eastward along the common boundary enhanced privacy in such bedrooms.
3. The respondents claimed the bamboo hedge did not severely obstruct the applicant's sunlight to nominated dwelling windows. To the contrary, Mr Murray and Ms Formosa contended the sunlight obstruction was due to the shape and small size of the windows, a stone boundary wall about 4 m tall located close to the western wall of the applicant's dwelling, and a horizontal awning about 400mm wide covering both the nominated ground floor windows. The respondents alleged that the applicant's lower ground floor windows were shaded by the common boundary fence in winter because the applicant's dwelling was at a lower level than the fence and the respondents' backyard. Further, the respondents contended that filtered light penetrated through the hedge during winter.
4. The respondents contended that if the sunlight obstruction was considered severe, the privacy the bamboo provided for their family, the bamboos' contribution to the aesthetics of their back garden, and to mitigating the impact of the 'bulk' of the applicant's dwelling and light spillage from the top storey, should be considered more important than the provision of extra sunlight to the applicant's lower ground floor windows.

Jurisdictional requirements

1. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122; at [17] - [22].

Do the trees form a hedge?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. Section 14A(1) states: (1) This Part applies only to groups of two 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).
3. The respondents acknowledged the bamboo was planted after their renovations and pool construction. As evidenced by Photograph 23 from February 2017, in the Respondents' written submission of 22 August 2024, young bamboo clumps were planted relatively close together in a row adjacent to the common boundary fence, which extended from the western boundary to near the respondents' dwelling. The bamboo had now reached a height of about 8 - 9 m. Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purpose of the Trees Act.
4. In Wisdom v Payn [2011] NSWLEC 1012 at [45], a hedge, for the purpose of the Trees Act, was described as follows: "...We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."
5. Consequently, I am satisfied that the respondents' trees were planted with an intention to form a hedge and display the character of a hedge, thus s 14A(1) of the Trees Act is engaged.
6. 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 a severe obstruction of: sunlight to a window of a dwelling situated on the land, or 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.
7. Mr Ong is an owner of his property and claims that the respondents' hedge severely obstructs sunlight to windows of his dwelling. The respondents' trees are situated on adjoining land. Therefore, s 14B of the Trees Act is satisfied.
8. Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located, Council, and other relevant parties.
9. An Affidavit of service from Mr Sloan, the applicant's Solicitor, dated 26 July 2024, confirmed appropriate service of the application and proposed orders to both the respondents and Council. As a result, Section 14C of the Trees Act is satisfied.
10. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent a 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)).
11. Section 14E(1) addresses the following matters of which the Court must be satisfied before making an order: (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.
12. The applicant provided a chronology of communication with the respondents since December 2022, including about 20 emails to Mr Murray and correspondence between the parties' lawyers. Within the emails, Mr Murray disputed whether Mr Ong had made a reasonable effort to reach agreement, as required by s 14E(1)(a), because Mr Murray considered Mr Ong was unprepared to compromise sufficiently and thus make a reasonable effort to reach agreement.
13. The requirement under s 14E(1)(a) of Pt 2A is the same as that under s 10(1)(a) of Pt 2 of the Trees Act. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides a framework for consideration of the 'reasonable effort' required to satisfy the Trees Act, from [191]: "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."
14. At [194]-[195] of Robson, his Honour states: "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
15. The requirement at s 14E(1)(a) to make "a reasonable effort to reach agreement" does not prescribe the conduct of an applicant, or how an applicant negotiates, nor does it require compromise or preclude an applicant from adopting an intractable position. Though Mr Murray disputed that the applicant's efforts to reach agreement were reasonable or sufficient, Mr Ong clearly and repeatedly communicated his requests to the respondents over a sustained period with no meaningful response from Mr Murray or Ms Formosa to remedy Mr Ong's alleged sunlight obstruction.
16. Considering his Honour's interpretation in Robson, I am thus satisfied that Mr Ong made a reasonable effort to reach agreement with the owners of the land on which the trees are situated such that s 14E(1)(a) of the Trees Act is engaged.
17. Section 14E(1)(b) was also satisfied as the applicant had given notice of the application in accordance with s 14C of the Trees Act.

Severe obstruction of sunlight to a window of a dwelling

1. At s 14E(2) of the Trees Act, the jurisdiction first requires assessment of the severity of the obstruction of sunlight to a window of a dwelling, or the obstruction of a view from a dwelling situated on the applicant's land, as a consequence of any or all of the trees in the hedge.
2. 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.
3. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); which in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders provided under s 14D of the Trees Act.

Is the obstruction of sunlight to a window severe?

1. Mr Ong nominated two windows on the ground floor (W1 and W2) and two windows on the lower ground floor (W3 and W4) for the assessment of obstruction of sunlight.
2. All nominated windows faced near north and were subject to sunlight obstruction by the bamboo hedge. Notwithstanding that filtered sunlight penetrated to W1-W4 between the tall bamboo stems, the applicant contended that imminent spring and summer foliage growth would obstruct such filtered light. Based on submitted shadow diagrams, the applicant claimed the sunlight obstruction was nonetheless particularly severe in winter whereas the respondents claimed the shadow diagrams were flawed and inaccurate as they were based on exclusion of sunlight by the hedge, without consideration of filtered sunlight penetration.
3. As it is customary for the Court to consider sunlight obstruction by a hedge at the winter solstice as a key criterion, I was satisfied on face value that obstruction of sunlight to the applicant's nominated windows was severe, such that s 14E(2)(a)(i) of the Trees Act was engaged. With s 14E(2)(a) engaged, the Court must consider s 14E(2)(b), which in turn required consideration of the following relevant matters under s 14F.

Section 14F considerations

1. Section 14F(a) considers 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. The bamboo was growing close to the common boundary, which was about 1.8 m from the applicant's north facing dwelling wall.
2. Section 14F(b) considers 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). The dwelling the subject of the application is the dwelling approved by Council in late 2020 and constructed in 2023 with approved DA modifications. While the footprint of the current dwelling may be the same as Mr Ong's previous dwelling, the alterations and additions included a 3rd storey, new balconies, and significantly altered windows and glass doors in terms of size, shape, and location.
3. The respondents' Photographs 23 - 25 showed the north facing wall of the applicant's original dwelling featured large, full height multi pane windows on the ground floor and Photograph 17 displayed the lower ground floor with glass doors and windows from floor to ceiling. In accordance with the DA conditions of consent for the modified dwelling, W1 - W4 were only about 260 - 300mm tall and about 1200mm long, positioned high up their respective walls and recessed into the walls by about 100mm. Given the nature and extent of the changes, particularly the significant reduction in window surface through which to gain northern light, the effect on obstruction of sunlight was akin to having a new dwelling.
4. The jurisdiction of Pt 2A of the Trees Act was not intended to provide access to sunlight or a view not previously available to an applicant. This approach has been consistently applied by the Court and has its origins in Recommendation 9 of the "Review of the Trees (Disputes Between Neighbours) Act 2006 " (the Review) undertaken by the NSW Department of Justice and Attorney General and published in November 2009. The amended Trees Act, which newly included Pt 2A, incorporated all of the recommendations made in the Review. Discussing the Review at [23] of McDougall v Philip [2011] NSWLEC 1280 (McDougall), Fakes C said, "The discussion relating to Recommendation 9 [page 35] states, in part, that: "The Court would only have the power to hear matters regarding: ...cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase.""
5. Other contextualised elements from Recommendation 9 are found in McDougall; at [22]: "c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views."
6. Dwellings subject to alterations or additions, especially those involving marked changes to windows and glass doors and thus sunlight access, or those creating new view locations, are considered similarly. This is the reason for inclusion of, "the window or part of the dwelling concerned where the dwelling has been altered or added to" under s 14F(b) of the Trees Act.
7. While construction of the applicant's original dwelling preceded the planting of the bamboo hedge, the applicant undertook major renovations and additions in 2023 that significantly altered the size, shape and configuration of the applicant's dwelling windows. Just as, "it would not be appropriate…to gain additional solar access which had not existed at the time of the purchase" (McDougall; at [23]), it would not be appropriate for an applicant to reduce their sunlight availability by altering the shape and reducing the size of windows, then expect neighbours to prune foliage to compensate for the reduction in sunlight availability and intensity caused by the window alterations.
8. Were this to be considered reasonable, an applicant could, for example, reconfigure a two-story dwelling by moving living areas downstairs with an expectation of the removal or major pruning of a respondent's established hedge trees to remedy a severe sunlight or view obstruction to such living area. In its extreme, this notion would be absurd, contrary to the intention of the Trees Act, and was similarly refuted in Barstow v Ainsworth [2023] NSWLEC 1442; at [79] - [81]. The sunlight obstruction of W1 - W4 shall be considered similarly, also consistent with Britten v Smith [2024] NSWLEC 1458; at [24].
9. Therefore, the dwelling subject of the application is the applicant's new dwelling, and the severity of obstruction of sunlight to W1-W4 is considered relative to the nature and condition of the hedge that existed upon the applicant's occupation of the new dwelling. The respondents contended the applicant occupied the new dwelling in December 2023, which Mr Ong did not dispute.
10. Section 14F(c) considers whether the trees grew to a height of 2.5 m or more during the period that the applicant has owned (or occupied) the relevant land.
11. In the Tree Dispute Claim Details (Form G) at question 3g), in response to "Did your dwelling (which is the subject of this application) exist when you purchased or occupied your property?", Mr Ong's response was, "YES (renovated in 2023)". At question 3h), which reads, "If your dwelling was constructed after you purchased or occupied your property, when was your dwelling constructed?", Mr Ong answered, "Existing building when purchased/ renovated in 2023". At question 3i), in response to "When your dwelling was constructed, was the tree already there?", Mr Ong's answered NO, but these answers do not reflect the historical reality, as displayed by the respondents' date stamped photographs.
12. The application was lodged on 7 June 2024. Thus, as discussed above at [44]-[47], the applicant's renovated dwelling, with a 3rd storey added and north facing windows significantly modified and reduced in size, is the "dwelling (which is the subject of this application)".
13. In claiming, at question 3i), that the bamboo did not exist "when your dwelling was constructed", Mr Ong was perhaps referencing the original dwelling, but the original dwelling is not the subject of this application. The original dwelling as originally configured had been effectively removed by the time this application was made. When the dwelling the subject of this application was constructed in 2023 and when Mr Ong occupied this dwelling in late 2023, the bamboo apparently already formed a dense screen about 7-8 m tall. The respondents' Photograph 27 from 18 April 2023, displayed the hedge of dense bamboo, uninterrupted except for the foliaged canopy of a Frangipani tree, extending along the boundary behind the respondents' pool and pergola with an average height equivalent to about the middle of the 3rd storey of the applicant's dwelling under construction - similar proportions as at the onsite hearing. The hedge's obstruction of sunlight to W1-W4 was probably also similar at that time to the situation at the hearing.
14. Section 14F(e) considers "any other relevant development consent requirements or conditions relating to the applicant's land or the land on which the trees are situated." Various conditions of consent regarding privacy and tree management arose from the applicant's DA and DA modification approvals, and from Ong.
15. The bamboo would tolerate moderate pruning maintenance, particularly with supplementary summer watering, but oft repeated pruning to a maximum height of 2.5 m would cause the bamboo long-term stress as insufficient foliage would be produced to provide enough carbohydrates for all required biological functions. Within his email correspondence and in Form G, Mr Ong's appeared to display a misconception that arises occasionally, that there is some legal requirement which restricts hedge height to 2.5 m. This is not the case, and the height of 2.5 m is only relevant as one of the thresholds, at s 14A, for trees to be deemed to form a hedge for the purpose of the Trees Act.
16. 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. Though Mr Ong, at question 27 of Form G, contended the hedge made no aforementioned contributions, privacy provided by the hedge underpinned the respondents' consistent resistance to bamboo height reduction. The respondents valued the hedge's aesthetic contribution to their landscape, its mitigation of the impact of light spill from the applicant's dwelling, as exhibited in the respondents' Photograph 32, and softening the visual impact of the applicant's dwelling.
17. Section 14F(m) considers "anything other than the trees, that has contributed, or is contributing, to the obstruction". The respondents' Photographs 23 - 25 showed the north facing wall of the applicant's original dwelling with large multi-pane windows on the ground floor and Photograph 17 displayed the lower ground floor with glass doors and windows from floor to ceiling. In accordance with the DA conditions of consent for the modified dwelling, W1 - W4 were each about 260 - 300mm tall and about 1200mm long, positioned about 1600mm up their respective walls and recessed into the walls by about 100mm. The respondents' Photograph 31 showed a horizontal awning about 400 mm wide directly above W1 and W2 on the ground floor causing a marked obstruction of sunlight to W1 and W2. The respondents also claimed the deep level of the applicant's lower ground floor relative to the higher common boundary fence and the tall stone wall on the dwelling's western side presented insurmountable locational constraints to sunlight accessing W3 and W4, especially during afternoons and in winter.
18. Mr Murray claimed that he pruned the hedge by pleaching or thinning out canes about four times per year but this was contested by the applicant (s 14F(n)).
19. Section 14F(o) considers 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 sunlight is lost. Mr Ong claimed he lost about 6-8 hours of sunlight in autumn and spring and about 8-10 hours of sunlight in winter, to each of W1-W4.
20. Though the bamboo is evergreen, its foliage is likely to shed and thin out markedly during winter and early spring, as was evident at the hearing (s 14F(p)).
21. Section 14F(r) considers "the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed." W1 and W2 were windows on the northern wall of the master bedroom on the ground floor. Morning sunlight was accessible through a large glass door at the northern end of the east facing wall and limited afternoon light was gained through a small high window facing west. On the lower ground floor, W3 was in a bedroom/ study and W4 was in an ensuite bathroom. Again, morning sunlight was available through a glass door on the eastern side of the bedroom and the ensuite had a small second window in its western wall. For the assessment of sunlight obstruction to W1-W4, heavy curtains drawn over the east side doors on both levels significantly curtailed sunlight access, but it was unclear if the curtains were usually closed or closed during the hearing to accentuate the limited availability of sunlight through W1-W4. Once the curtains were opened, however, morning sunlight significantly brightened the rooms on both levels.
22. An email from Mr Murray to Mr Ong on 5 August 2024, labelled 9 in the Respondents' written submissions, contained an excerpt from Randwick Development Control Plan 2013 (DCP) titled 5.1 Solar access and overshadowing. Below this information, Mr Murray noted, "See point iii) above … No mention of bedrooms". The text of point iii) said, "A portion of the north facing living area windows of neighbouring dwellings must receive a minimum of 3 hours of direct sunlight between 8am and 4pm on 21 June (winter solstice)".
23. The Court regularly takes guidance from such Local Government Solar access and overshadowing requirements when considering the impact and significance of sunlight obstruction by hedges. In common with most Council's guidelines, the Randwick DCP prescribes sunlight requirements only for living areas, thus relegating the importance of sunlight to bedrooms and service rooms. The dwelling's first floor which contained living areas and kitchen received ample direct sunlight from most directions and included a covered balcony to restrict direct sunlight.
24. The respondents also tendered Devile v Frith [2011] NSWLEC 1250 (Devile) where Hewett AC, in similar circumstances, determined obstruction of sunlight was severe, at s 14E(2)(a), but nonetheless dismissed the application because "the undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed", at s 14E(2)(b) of the Trees Act.
25. At [30] of Devile, Hewett AC said, "W1 is a north facing bathroom window. The bathroom is a utility room that is not occupied for long periods and cannot be given weight equivalent to a living area." Devile notes; at [31]: "W2 is a study located on the northern end of the house between the bathroom and the garage and is not part of the main living area of the house. Although I would give this room slightly more weight than the bathroom, laundry and garage, it is not a room that could be considered as part of a living area of the house".
26. Similarly, the significance of sunlight to bedrooms is deemed less than for living areas as bedrooms are primarily used at night, unless particular circumstances of a case render a bedroom's use akin to that of a living area.
27. Section 14F(r) considers "such other matters as the Court considers relevant in the circumstances of the case". During emailed negotiations between the parties, Mr Ong requested that the respondents prune bamboo foliage encroaching beyond the common boundary. Such encroachment of foliage is a reasonable expectation in urban areas, however, and there is no remedy under the Trees Act for encroachment unless such foliage has caused damage or is causing damage or is likely to cause near future damage, or a genuine risk of injury to a person.
28. This issue generally arises in matters under Pt 2 of the Trees Act, where applicants often conflate encroachment and associated dropping of leaves and other debris as damage caused by trees. In addressing this issue, the Court established the following Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292; at [20]: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
29. As a consequence of this Tree Dispute Principle, the applicants' submissions regarding bamboo encroachment do not invoke the jurisdiction of the Trees Act.
30. Conclusion
31. Based on my site inspection and evidence adduced from oral and written submissions, I have reached the following conclusions: 1. Although on face value, obstruction of sunlight to W1-W4 as a result of the hedge was severe, I am satisfied the extent of sunlight obstruction caused by the hedge, as assessed at the hearing, was little different to the situation when Mr Ong occupied his extensively altered dwelling in December 2023, i.e. the dwelling subject of the application. In accordance with the intent of the Trees Act reflected in the Review, "[i]t would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access which had not existed at the time of the purchase". 2. Though Mr Ong apparently preferred the Court to consider the situation before the hedge was planted or when the hedge was small as the baseline of assessment, this is not appropriate because the applicant's original dwelling was then in existence and the original dwelling is not the dwelling subject of the application. 3. Had the Court instead used the time of the applicant's property purchase in 2010 as the basis for comparison, a dense row of tall trees which was then growing along the respondents' southern boundary and screening oversight into their dwelling and back yard, would likely have been deemed a hedge, and the bamboo would probably be obstructing less sunlight than had the trees existing in 2010. 4. It would not be reasonable for some time in 2016-2017 for example, when the bamboo was newly planted and small, to be the baseline for comparison as this was some years prior the applicant's initial occupation of the property and the dwelling in place at that time was not the dwelling subject of the application. Consequently, the extent of sunlight obstruction by the hedge to W1-W4 has probably changed very little since the applicant's occupation in December 2023, therefore the application is refused.
32. Even if my interpretation above at [68(1)] - [68(4)] was wrong, W1-W4 were small, short, and recessed about 100mm back from the wall's outer face and thus provided minimal potential access for sunlight to brighten the rooms, whereas large east facing glass doors on both levels allowed ample morning light to enter the bedrooms.
33. Significantly, W1-W4 were in bedrooms or a bathroom where sunlight availability is considered less important than living areas and where supplementary lighting is commonly used.
34. I accept the respondents' contention that the 400 mm wide awning installed directly above the ground floor windows, as displayed in the respondents' Photograph 31, caused significant obstruction of sunlight to W1 and W2 and would also obstruct sunlight to W3 and W4 during summer when sunlight would be cast relatively vertically down the gap of almost 2m between the hedge and the applicant's north facing wall.
35. Given my familiarity with Slender Weavers Bamboo and the tendency of its foliage to shed and thin out during Sydney winters, I am also satisfied that filtered sunlight was likely to penetrate through the hedge to W1-W4 during winter, thus compromising the accuracy of the applicant's winter shadow diagrams. This was exemplified by the bamboo's foliage remaining sparse at the onsite hearing on 5 September 2024. Such filtered sunlight would be likely to technically satisfy 5.1 iii) of Randwick DCP requiring, "[a] portion of the north facing living area windows of neighbouring dwellings must receive a minimum of 3 hours of direct sunlight between 8am and 4pm on 21 June (winter solstice)".
36. Further, I concurred with the respondents that the low level and locational constraints of the applicant's lower ground floor were major causes of sunlight restriction to W3 and W4. Conversely, the applicant's living areas and kitchen were located in the dwelling's upper-level addition and received extensive sunlight through large glass doors and windows.
37. The applicant claimed the issues of privacy, light spillage, and his dwelling's visual bulk had been addressed and determined by DA conditions of consent. However, given the location of the applicant's dwelling relative to the respondents' pool and recreation areas, the series of modifications to DA privacy conditions gained by the applicant, and the respondents' apparent lack of confidence in such DA conditions being implemented and upheld, it was unsurprising the respondents maintained control over their privacy and their perception of privacy by resisting significant bamboo pruning. Privacy is the most common concern of respondents in 'hedge' cases.
38. The respondents, in their proposed alternative orders, reiterated their offer to prune the hedge "to a height equivalent to the top of the applicant's middle level (ground floor) windows and re-pruned at this height annually", a height that (in the absence of the horizontal awning) would provide for ample sunlight to reach W1 and W2. Mr Ong, however, again rejected this offer and instead proposed pruning the hedge at a height of 2.5 m and maintaining the hedge at or below 2.5 m high.
39. Given the inherent constraints on sunlight reaching W3 and W4 caused by small, short, recessed windows and the lower ground floor room's location, the fact sunlight to W3 and W4 is relatively insignificant because W3 was in a bedroom/study and W4 was in a bathroom, that ample morning light was available to the bedroom/study through a large east facing glass door, and that filtered sunlight may reach W3 and W4 in winter, I am satisfied the relative benefit to the applicant from the bamboo being pruned and maintained at or below 2.5 m tall is far outweighed by the negative impact on the respondents' perception of privacy and the aesthetics of their back yard, the long term negative impact on hedge health and vigour, and excessive light spill from the upper floor of the applicant's dwelling.
40. Consequently, as Hewett AC found in Devile, I am satisfied, at s 14E(2)(b) of the Trees Act, that the undesirability of interfering with the trees outweighs the applicant's interest in having the obstruction removed or remedied. Therefore, s 14E(2)(b) is not satisfied, so the Court has no power to make orders, thus the application is refused.
41. With respect to the respondents' proposed alternative Order 1, claims for legal costs fall outside the power of Commissioners and require lodgement of a Notice of Motion with the Court, which is heard before a registrar, or a judge.
42. As to the respondents' proposed alternative Order 2, that the applicant shall not "come back again regarding this issue", after the Court determines the application, unless circumstances materially change, no further application can be made by the applicant (See McCallum v Riordan [2011] NSWLEC 1009; Awad v Hardie (No.3) [2012] NSWLEC 1067). If the nature of the application remains the same but all that has changed is that there is further evidence to support the application, such an application cannot be successful if the new evidence is evidence that could have been available at the time of the original hearing. Having said this, should the bamboo grow to severely obstruct the applicant's views available upon his 2023 occupation, a new application may be made under Pt 2A of the Trees Act.
43. Regarding the respondents' alternative proposed Orders 4 and 5, ongoing retention of the applicant's top-storey louvres and protection of the tree in the north-east corner of the applicant's land both fall under the jurisdiction and responsibility of Council.

Orders

1. The Court orders: 1. The application is refused.

Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2025