Papapantos v Zhang

File Number(s): 2025/165428

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** In late 2024, Quan Zhang and Xia Chen planted a row of slender weavers bamboo along the rear boundary of their St Ives property, comprised of two adjoining lots. Kim and Christopher Papapantos live in the adjoining property to the east. On the basis that the bamboo obstructs sunlight to their dwelling, the Papapantoses have applied to the Court seeking orders for it to be removed and for the height of any replacement hedge to be restricted.

2. The hearing took place onsite, allowing the Court to view the trees and both properties. The parties were self-represented.

Framework for this decision

3. The Papapantoses have applied to the Court pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act). Bamboo plants are trees for the purposes of the Trees Act: s 4 of the Trees (Disputes Between Neighbours) Regulation 2024 (NSW). The bamboo is planted so as to form a hedge and is more than 2.5 metres tall, so Pt 2A of the Trees Act applies to the bamboo: s 14A. The orders sought are one the Court can make at s 14D.

4. Therefore, relevant issues to be determined in these proceedings are:

5. Whether the applicants have made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 14E(1) of the Trees Act.

6. Whether the Court can be satisfied that the trees are severely obstructing sunlight to the applicants’ windows: s 14E(2)(a).

7. Whether the Court can be satisfied that the applicants’ interests outweigh reasons for not interfering with the trees: s 14E(2)(b).

8. If orders are to be made, how consideration of the relevant matters at s 14F of the Trees Act should influence those orders.

The applicants’ submissions

5. The Papapantoses submitted that they discussed their concerns with Mr Zhang and Ms Chen but were unable to reach agreement.

6. The rear part of the applicants’ property is within a biodiversity zone. Mature turpentine and Sydney red gums that dominate their garden are protected. The trees, which are west of their dwelling, allow summer afternoon sunlight through to the west-facing windows of their living area windows on the ground floor of their dwelling.

7. The applicants submitted that bamboo culms have already reached 6–8 metres in height. Because the bamboo was planted recently, only its lower parts are covered in dense foliage, while its upper parts are relatively sparse. However, very soon the upper parts will fill out, creating a dense wall of bamboo up to 8 metres tall along their rear boundary. This will obstruct late afternoon sunlight to the applicants’ windows.

8. The applicants submitted that the bamboo planting is inappropriate for several reasons. It is an invasive species planted in a biodiversity zone. They suggested it would plunge their garden into darkness and that it would outcompete their mature trees for water and nutrients, killing the trees. The bamboo was planted less than a metre from the dividing fence and will grow more than 60 cm taller than the fence, therefore not complying with council guidelines.

9. The applicants submitted that the bamboo is not needed for the respondents’ privacy. They have limited opportunities for overlooking the respondents’ property, and the respondents’ bedroom windows are far enough away that they cannot see into the bedrooms. They would be happy to put some lattice or other extension atop the boundary fence to assist with privacy.

10. The applicants explained that they enjoy the view of summer sunsets over the respondents’ property, but the bamboo will obstruct this view.

11. The applicants would prefer a more appropriate species used for hedging here, maintained at a reasonable height.

12. Other issues raised by the applicants, including development approvals and consents, are not relevant to this decision and are not explored here.

The respondents’ submissions

13. Mr Zhang and Ms Chen agreed that they discussed with the applicants the bamboo and its potential height and impacts.

14. The respondents submitted that they planted the bamboo for privacy. The applicants’ property is higher than theirs, with large windows facing their property. The respondents can clearly see the applicants’ upper floor windows from their property. They want to prevent overlooking to all parts of their property, including their garden, but are particularly concerned about privacy for their bedroom windows.

15. The respondents submitted that the bamboo does not obstruct sunlight to the applicants’ windows or, if it does, that any obstruction would be minimal. The canopy of trees on the applicants’ property obstructs sunlight, not the bamboo.

16. The respondents are not aware of any regulations preventing their bamboo planting or restricting its height.

Findings

17. Discussions had by the parties were clearly unlikely to result in an agreed outcome. I am satisfied that the applicants made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court has allowed for the required notice of the application.

18. The bamboo will form a dense screen up to 8 metres tall on the respondents’ property along the common boundary. This will affect the outlook from the back part of the applicants’ dwelling. It will shade the back part of their garden. The bamboo creates a landscape of a very different character to the more natural landscape on the applicants’ side of the dividing fence. The applicants’ concerns seem reasonable, even if they exaggerate them by saying that their garden will be plunged into darkness or that the bamboo will kill their trees.

19. Having observed the potential for overlooking from the applicants’ first-floor windows, it seems to me that the respondents’ concerns around privacy are imagined more than real. Expectations for complete privacy in this residential setting are unreasonable; but even then, there is no significant overlooking issue. A screen of vegetation 8 metres tall is unnecessary here.

20. Despite these findings, the Trees Act creates a limited jurisdiction. The Papapantoses have applied for orders on the basis of sunlight obstruction. The Court has interpreted the word “sunlight” to be direct sunlight rather than just daylight: see Drewett v Best [2010] NSWLEC 1305 at [17]. The west-facing windows on the applicants’ ground floor are mostly shaded from western sun by the 4m overhang of the roof over their alfresco area, and by tree canopy on their own property. Once the bamboo is mature, it might obstruct some direct sunlight during mid-summer, but only in the very late afternoon when the sun is close to the horizon. Relying on the history of cases where the Court has determined the extent of sunlight obstruction, I regard this as a moderate obstruction, but not a severe obstruction.

21. Because the bamboo does not severely obstruct sunlight to the applicants’ windows, the Court cannot make orders in this application. There is therefore no need to consider s 14E(2)(b) and s 14F of the Trees Act in this judgment. The applicants’ western outlook, the principal outlook from their living areas, is a pleasant one. If the situation changes, and the applicants find that the bamboo severely obstructs their view once it matures, they may reapply to the Court.

Orders

22. The Court orders:

23. The application is refused.

24. The exhibits are retained.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

29 August 2025

Correction on Cover sheet