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[2025] NSWLEC 1776
General information, not legal advice.
Land and Environment Court (NSW)
2025-10-31
Douglas AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Pricken v Burgess [2025] NSWLEC 1776
Hearing dates: 28 July 2025
Date of orders: 31 October 2025
Decision date: 31 October 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision: The Court orders that:
(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune T1 and T3 to at least 600mm below the eastern and western ends of the southern side of the applicants’ dwelling, including stems that are likely to slap against the applicants’ eaves and gutters during strong winds.
(2) During the last 14 days of April 2026 and during the last 14 days of November 2026, and during the same period of April and November of each subsequent year, the respondents, at their expense, shall repeat the pruning in accordance with Order (1).
(3) The pruning works shall be completed by an Australian Qualification Framework (AQF) level 3 qualified arborist or horticulturist who holds all appropriate insurances.
(4) All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours.
(5) Should access to the applicants’ property be required to undertake the pruning works or to remove or poison residual stems of T4, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — balancing views and privacy — minor near future damage likely — apprehension of fence and structural damage in future
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW)
Pt 2, Pt 2A, ss 7, 10, 12, 14A, 14B, 14C, 14D, 14E,
Trees (Disputes Between Neighbours) Regulation 2024
Cases Cited: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Welsh v Radford [2023] NSWLEC 1095
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category: Principal judgment
Parties: Johannes Pricken (First Applicant)
Sonja Szary (Second Applicant)
Joel Burgess (First Respondent)
Daisy Poiner (Second Respondent)
Representation: J Pricken (Applicants)
J Burgess (Respondents)
File Number(s): 2025/177967
Publication restriction: Nil
COMMISSIONER: Since 2001, Mr Pricken and Ms Szary, the applicants, have owned and occupied an elevated property in Newport, which commands bushland and ocean views. The applicants share a common side boundary with Mr Burgess and Ms Poiner, the respondents, who occupied their property in August 2020 with their two young children. The common boundary runs from east to west and the applicants’ property is north of the respondents’ land.
In their ‘Position Statement and Evidence’ (Exhibit 1), the respondents included photographs (photos) of rhizomatous (running) bamboo and overgrown vegetation throughout their yard upon their occupation. Commencing at the rear, Mr Burgess removed the bamboo and planted a row of Slender Weavers Bamboo (Bambusa textilis var. Gracilis*)*, along the rear of the common boundary in 2021.
By late 2024, Mr Burgess had cleared running bamboo and overgrown vegetation throughout most of the back yard and undertaken landscaping works to establish more useful, level space for children’s play areas. In December 2024, Mr Pricken approached Mr Burgess about a wall Mr Burgess was constructing in conjunction with levelling works and the negative impact of the vegetation clearing on both parties’ privacy. Mr Burgess advised Mr Pricken of his intention to re-establish privacy by planting another row of Slender Weavers Bamboo along the middle of the backyard boundary.
Mr Pricken “expressed opposition to further bamboo planting”. Nonetheless, Mr Burgess planted a row of Slender Weavers Bamboo close to the boundary, near the middle of the back yard. Mr Burgess claimed the bamboo was non-invasive and unlikely to cause damage because it was a clumping rather than running bamboo variety.
The applicants disputed the respondents’ claim that the Slender Weavers Bamboo would not cause damage to their dwelling, or encroachment. They were particularly concerned about the future impact of the newly planted hedge. Mr Pricken commenced correspondence aiming to persuade Mr Burgess not to plant the bamboo.
Around 2017, Mr Pricken had planted a clump of Slender Weavers Bamboo that had grown broad and tall. Additionally, the respondents’ back bamboo was encroaching beyond the boundary near the applicants’ pool.
Another conflict arose from the respondents’ alleged tardiness in removing a dead branch from a Eucalyptus tree overhanging the applicants’ swimming pool. The parties engaged in discussion and extensive correspondence but were unable to reach agreement.
Consequently, Mr Pricken submitted an application, 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 hearing commenced with an inspection of the respondents’ trees. Initially moving from east to west, T1 was a large clump of Slender Weavers Bamboo that encroached slightly across the common boundary near the entrance to the applicants’ dwelling (V1). T2 was a row of 6 or 7 clumps of Slender Weavers Bamboo that Mr Burgess had planted in December 2024 along the boundary in front of the applicants’ south facing kitchen (W1) and lounge room windows (W2).
T3 was a row of Slender Weavers Bamboo that Mr Burgess had planted around 2021 adjacent to the applicants’ tall concrete swimming pool wall that formed the rear part of the common boundary. The clumps had intermingled as they established such that T3 looked about 6-8 metres (m) tall and now screened oversight from the applicants’ first floor veranda at the western end of their dwelling.
T4 was a small clump of running bamboo that was growing on and near the common boundary in the parties’ front yards. A proposed order for removal of deadwood from a mature Spotted Gum Tree (T5) near T3 that was included in the initial application of 9 May 2025 was omitted from a modified application of 26 June 2025, as the respondents pruned the deadwood in the interim.
Prior to oral submissions, the Court assessed the current and likely future impacts of the respondents’ trees from various view locations and windows in the applicants’ dwelling and from the pool surrounds of the applicants’ rear yard. The impact of the presence or removal of trees on privacy was also considered from primary locations in both parties’ dwellings and yards.
The application under Pt 2 of the Trees Act alleged damage, primarily to eaves and gutters of the applicants’ dwelling, resulting from impact by T1 and T3 and likely future damage caused by T2 and T3 to the common boundary fence, the dwelling, and a side path.
Under Pt 2A of the Trees Act, T2 was the primary focus regarding severe obstruction of (future) sunlight to dwelling windows and imminent reduction of indirect light. The applicants emphasised the likelihood of feeling enclosed and claustrophobic due to potential overgrowth and proximity of T2. The applicants claimed T1 severely obstructed ocean views from windows adjacent the front door (W3/V1) and the front veranda, and that T2 was likely to cause similar future severe view obstruction from lounge room windows on the ground floor (W2/V2) and study windows on the first floor.
Prior efforts by Mr Pricken to resolve the dispute included attempts to organise mediation through a Community Justice Centre (CJC). In an email of 8 March 2025 at 5:28PM, in anticipation of mediation, Mr Pricken cast aspersions about the bamboo causing, “structural strain on our house” and impact on “structural integrity”. In emailed responses, Mr Burgess repeatedly requested the applicants provide engineering evidence to substantiate these claims or otherwise agree to abstain from making unsubstantiated damage claims during mediation.
Mr Pricken did not submit engineering evidence. Instead, in an email of 16 March 2025, addressing “inconsistencies and mischaracterisations”, Mr Pricken said he had been raising concern about risk of future damage rather than damage already incurred and his main concerns were “overgrowth, obstruction, and encroachment”.
With respect to their replacement planting, the respondents reiterated that the clumping bamboo was unlikely to cause damage or obstruction problems alleged by the applicants. The respondents sought privacy from oversight through first floor windows and balconies of the applicants’ two storey dwelling and to soften the visual impact of the dwelling’s dark brick side wall.
Mr Burgess contested a claim by Mr Pricken that a small retaining wall built to establish level ground for children’s play equipment failed to meet Council requirements. Regardless, this is not a matter that comes under the jurisdiction of the Trees Act.
Mr Burgess submitted that the applicants’ proposed orders of 26 June 2025 were harsher and less reasonable than the original proposed orders of 9 May 2025, with no apparent justification. The respondents claimed that the applicants received more light through W1 and W2 and better views from V2 through W2 than they had for many years previously, resulting from the extensive vegetation clearing of running bamboo and other overgrowth by Mr Burgess.
Nonetheless, amended orders are permitted under the Trees Act, provided they satisfy the Registrar’s timetable from the procedural hearing. Notwithstanding the acceptance of the amended orders, the Court is not restricted to orders proposed by applicants. If the requirements of the jurisdiction are satisfied, the Trees Act provides discretion for the Court to make a broad range of orders.
The respondents, at their expense, shall remove all above and below ground growth of T1, including bamboo roots that have encroached into the applicants’ property, within 42 days of the date of these orders. The respondents shall not plant Bamboo or other species renowned for aggressive or invasive roots within 3m of the common boundary. Any species selected for replacement planting shall be non-invasive and have a mature height not exceeding 3m.
The respondents, at their expense, shall remove all above and below ground growth of T2 within 42 days of the date of these orders. The respondents shall not plant Bamboo or other species renowned for aggressive or invasive roots within 3m of the common boundary. Any species selected for replacement planting shall be non-invasive and have a mature height not exceeding 3m.
The respondents, at their expense, shall remove all above and below ground growth of T3 within 42 days of the date of these orders. The respondents shall not plant Bamboo or other species renowned for aggressive or invasive roots within 1.5m of the common boundary. Any species selected for replacement planting shall be non-invasive and have a mature height not exceeding 3m.
The application under Pt 2A of the Trees Act shall be addressed initially.
(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).
Bamboo is prescribed as a tree under the Trees (Disputes Between Neighbours) Regulation 2007.
The application described the bamboo as hedges T1, T2, and T3 and proposed separate orders for each hedge.
In a copy of an email from 23 February 2025, attached to the applicants’ Form C (Exhibit A+), Mr Burgess noted Mr Pricken “previously informed us you planted” T1. At the hearing, Mr Pricken confirmed having planted a single clump of Slender Weavers Bamboo in or around 2017 on the respondents’ land, under an arrangement with prior owners of the respondents’ property, which had grown into T1. I understood the intention of this planting was to provide privacy near the applicants’ adjacent dwelling front entrance.
Although T1 now had a multitude of stems, regardless of any argument that may arise on botanical grounds, it is nonetheless a single tree. A rationale to this effect was established in Welsh v Radford [2023] NSWLEC 1095; at [58]-[62] for a similar large single clump of Slender Weavers Bamboo.
Section 14A(1) 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.
Consequently, T1 does not form a hedge for the purpose of the Trees Act.
In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson*)*; at [11]-[44], Chief Justice Preston provided extensive commentary on satisfaction of s 14A(1)(a) of the Trees Act. Regardless that T1 may currently form a screen and perform purposes one may associate with a hedge, satisfaction of s 14A(1)(a) also requires an intention to form a hedge at the time of planting. As his Honour stated in Johnson; at [28]:
“In this case, the legislative draftsperson of s 14A(1)(a) has used the simple present tense for the phrase 'trees that are planted' with the adverb clause of purpose 'so as to form a hedge' to indicate a requirement that the trees be planted so as to form a hedge at the time of planting and that this state of affairs of being planted so as to form a hedge continue to the present”.
Given that T1 resulted from only one clump of bamboo planted by Mr Pricken, prior to property occupation and any planting of Slender Weavers Bamboo by the respondents, T1 is not a hedge for the purpose of the Trees Act.
Conversely, I am satisfied that T2 and T3 satisfy s 14A(1) and thus are hedges for the purpose of the Trees Act.
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:
(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.
Section 14B of the Trees Act is satisfied as the applicants own their property and claim that sunlight to windows of their dwelling and views from their dwelling is severely obstructed by the respondents’ hedge.
Section 14C of the Trees Act, requiring at least 21 days’ notice of the application for orders to be given to owners of affected land, is also satisfied. The applicants have provided evidence of service of the application documents on the respondents and on Northern Beaches Council (Council) and the Court provided the required notice prior to the final hearing.
Section 14D of the Trees Act covers the Court’s broad jurisdiction to make orders:
(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of:
(a) sunlight to a window of a dwelling situated on the applicant’s land, or
(b) any view from a dwelling situated on the applicant’s land,
if the obstruction occurs as a consequence of trees that are the subject of the application concerned.
(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may do any or all of the following:
(a) require the taking of specified action to remedy the obstruction of sunlight or of a view,
(b) require the taking of specified action to restrain or prevent the obstruction of sunlight or of a view,
(c) require the taking of specified action to maintain a tree or trees at a certain height, width or shape,
(d) require the removal of a tree or trees and the replacement of the tree or trees with a different species of tree,
(e) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a),
(f) authorise the applicant concerned to take specified action to remedy, restrain or prevent the obstruction of sunlight or of a view,
(g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land of an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land),
(h) require the payment of costs associated with carrying out an order under this section.
(3) However, the power to make an order under subsection (1) does not extend to an order that requires the payment of compensation.
Section 14E(1)(a) of the Trees Act requires that the applicants make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
The respondents considered many of the applicants’ demands and requests to be unreasonable overreach in terms of the respondents’ right to manage their property as they see fit, especially their choices of species and location of planting.
While I don’t make my final decision regarding satisfaction of s 14E(1)(a) until before I make an order, I refer to Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280 (Robson) where Chief Justice Preston provided guidance about the ‘reasonable effort’ required to satisfy the Trees Act. 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. At [191]-[192] of Robson, his Honour says:
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.”
Consequently, the requirement to make “a reasonable effort to reach agreement” does not prescribe how applicants negotiate, or require applicants to attempt to reach a compromise, nor does it consider the respondents’ perception of the reasonableness of the applicants’ conduct. Further, it places no onus on respondents to make effort to reach agreement.
Considering [191]-[192] of Robson, Mr Pricken initially spoke with Mr Burgess. Both parties evidence included copies of texts and emails discussing the dispute and detailing negotiations building towards mediation at the CJC. This is ample evidence to satisfy s 14E(1)(a) of the Trees Act.
Section 14E(1)(b) of the Trees Act is also satisfied as the applicants have given notice of the application in accordance with section 14C.
The next requirement is to assess the severity of obstruction of sunlight to a window of a dwelling situated on the applicants’ land or all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a) states:
(2) The Court must not make an order under this Part unless it is satisfied that
(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.
The applicants nominated two ground floor windows for assessment of severe obstruction of sunlight: W1 in the kitchen and W2 in the lounge. Both windows faced the common side boundary.
At Question 4 of Exhibit C, the applicants noted, “[t]he windows received limited direct sunlight throughout most of the year. However, they received some early morning sun during summer and shoulder months, when the sun rises in the southeast and moves across the northern part of the sky. Due to the dense Slender Weavers Bamboo hedge, which is planted less than 1.5m from the house and is expected to grow over 9m in height, these windows sit within a narrow corridor or tunnel. The combination of extreme proximity and vertical height means that almost all direct sunlight is blocked, particularly at low solar angles”.
The applicants estimated approximately 90-100% of direct sunlight was lost due to the hedge’s height and the narrow gap between the building and the plants, comprising up to 1-2 hours of morning sun during spring and summer months (October to March), typically between 7:30AM and 10:00AM. They said the hedge heavily reduced reflected or ambient winter light, notwithstanding that W1 and W2 received no direct winter sunlight. The applicants claimed thermal comfort, natural lighting and energy efficiency of the adjacent interior spaces were impacted and 1st floor windows would be similarly affected once the bamboo hedge matured.
The applicants acknowledged a mature Palm tree with foliage above roof height and a Pine tree also impacted light penetration but claimed “a substantial loss of amenity due to natural lighting conditions being significantly worse than could be reasonably expected in a typical suburban environment”. Due to the hedge’s rapid growth rate, the applicants considered removal of the bamboo rather than regular maintenance was the only reasonable means of mitigating the impacts of the bamboo’s obstruction of sunlight.
At Question 4 of the applicants’ Form C for High Hedges (Exhibit C), Mr Pricken contended that W1 and W2 “are located on the south-southeast (SSE) facing wall of the house”. Based on the arrow indicating N on the applicants’ hand drawn diagram for Question 2 of Form H for Damage and Injury (Exhibit B), the applicants’ side wall facing the respondents’ property appeared to extend from NE to SW. However, this was incorrect.
As contended by Mr Burgess, a survey diagram included by the applicants at Question 2 of Exhibit C, showed the side wall containing W1 and W2 faced almost precisely due south (S) towards the respondents’ property. My findings are based on the survey diagram.
During any given year, there are only limited periods when S facing windows can receive direct sunlight because the sun’s diurnal arc is predominantly north (N) of vertical. Around 1PM at the summer solstice (22 December) in Sydney, the sun is approximately 11 degrees N of vertical. Around midday at the winter solstice (21 June) in Sydney, the sun is approximately 58 degrees N of vertical and it progressively moves between these extremes, from mid-summer to mid-winter, and from mid-winter to the subsequent mid-summer.
Hypothetically, because the sun rises about 30° S of east (E) on the summer solstice, sunlight could reach W1 and W2 for a couple of hours in the early morning, and, for a progressively shorter time on days further from the summer solstice, for about a month or more before or after the summer solstice. However, there were various site factors that obstructed sunlight penetration to W1 and W2.
T1 was about 2m wide and about 7-8m high, far higher than W1 and W2. It was located across an arc E through to ESE of the windows. T1 formed a dense barrier preventing early morning summer sunlight penetrating to W1 and W2. However, T1 had been determined not to be a hedge for the purpose of the Trees Act because it originated from a single bamboo clump, planted around 2017 by Mr Pricken on the respondents’ land. Therefore, under the Trees Act, T1 is considered as an amenity tree.
There is no remedy under the Trees Act for obstruction of sunlight to windows or for any other sunlight obstruction resulting from amenity trees. Any possible remedy for obstruction of sunlight to dwelling windows only relates to hedges that satisfy s 14(A)(1) of the Trees Act. The respondents’ cottage, located S of T1 and SE of W1 and W2, would also obstruct sunlight from reaching W1 and W2 during early mornings in summer.
Mr Pricken had contended that direct sunlight impacted W1 and W2 for about 2 hours between about 7:30AM-10:30AM but sunrise is about 5:40AM at the summer solstice. Admittedly, the Pricken’s high location relative to the coast may result in the sun not reaching horizontal relative to their property until perhaps 6:00AM-6:30AM but sunlight would be obstructed, initially by the respondents’ cottage and especially by T1 for quite a few hours after this time. As the sun progressively rose, its arc would move towards the north. Therefore, if there was a short early to mid-morning period where direct sun impacted W1, or more likely W2, the more distant window from T1, it would impact from above T1 at a very acute angle. However, even this was unlikely because the windows were recessed at least 100mm from the surface of the double brick wall.
Another consideration was the bamboo clumps comprising T2 were only planted in December 2024. While Mr Pricken had described T2 as about 1.8m tall with some stems around 4m, the clumps generally appeared small and immature, notwithstanding there were some emergent stems 3-4m tall. However, as exemplified by the applicants’ estimate that “approximately 90-100% of direct sunlight was lost due to the hedge’s height and the narrow gap between the building and the plants”, the applicants’ submissions reflected a worst-case future scenario, as if the bamboo was already established and mature, rather than the far different reality of the present situation.
Currently, T2 barely had enough stems or leaves to cause any genuine obstruction of sunlight or even indirect light from reaching or penetrating W1 and W2. Even if T2 was up to about 6m tall and much more dense, T2 would continue to cause negligible obstruction of direct sunlight to W1 and W2 because of the pre-existing obstruction of sunlight during summer mornings by T1 and the respondents’ cottage.
The applicants’ claims regarding bamboo reducing the intensity of “reflected or ambient winter light” through the S facing windows does not engage the jurisdiction. As I noted at [22], the jurisdiction of Pt 2A of the Trees Act is limited. Section 14E(2)(a)(i) is engaged by severe obstruction of sunlight to a window of a dwelling. The intensity of indirect or ambient light has no bearing on engagement of 14E(2)(a)(i) of the Trees Act.
Further, when assessing the severity of sunlight obstruction to windows of dwellings, the Court often considers guidelines commonly used by local government planners in their assessment of shadowing by proposed developments. Local government guidelines generally prioritise sunlight access to living areas between 9AM-3PM.
Therefore, even if T1 and the respondents’ cottage were absent and T2 had grown sufficiently to obstruct sunlight to W1 and W2 for about 2 hours before 10:30AM, for a relatively short period “during summer and shoulder months”, as claimed by the applicants, I would not consider this to be a severe obstruction of sunlight. Rather, I would consider the impact of the obstruction to be less than severe. Sunlight and associated warmth are usually particularly valued in winter when daylengths are much shorter.
I am not persuaded by the applicants’ submission regarding “substantial loss of amenity due to natural lighting conditions being significantly worse than could be reasonably expected in a typical suburban environment”. The ecological community in which the applicants have chosen to reside is characterised by a reduced but still moderately dense canopy of fairly large Spotted Gums (Corymbia maculata), with Cheese Trees (Glochidion ferdinandii), which have dense foliage, prominent in the mid-storey. At least one of each of these tree species was growing in the respondents’ garden and casting significant shade below.
In combination with the fact that W1 and W2 faced almost due S, the resultant “natural lighting conditions” were what one may expect. It was unfortunate that the applicants’ kitchen windows (W1) faced south and that the gap of only about 1.5m between the applicants’ S facing wall and the common boundary exacerbated the proximity of the respondents’ vegetation.
However, it is not a reasonable expectation for the respondents to be required to compensate for design limitations of the applicants’ dwelling. One would expect rooms on the northern side of the applicants’ dwelling to conversely receive ample direct sunlight. This reflects the usual pros and cons of rooms in dwellings that predominantly face north and south.
Finally, there is no remedy under the Trees Act to address the applicants’ concern about the proximity of the respondents’ bamboo and the applicants’ perception of the bamboo being bulky and inducing claustrophobia. This does not imply that these are not genuine or reasonable concerns of the applicants. However, there is no scope under the Trees Act for orders which prevent or remedy bamboo or branches of any tree encroaching beyond boundaries unless such bamboo or branches have caused or are causing damage, or are likely to cause near future damage, or present a genuine risk of injury. These considerations arise under Pt 2 of the Trees Act.
Consequently, s 14E(2)(a)(i) is not satisfied and the application for orders to remedy severe obstruction of sunlight to windows of the applicants’ dwelling due to the respondents’ hedges, is refused.
The next test, at s 14E(2)(a)(ii), is to assess the severity of obstruction of any of the views from the applicants' dwelling due to any or all of the trees in nominated hedges.
The applicants’ primary concern was obstruction of SE views (V1) towards the coast from tall front windows (W3) and the veranda adjacent to the front door. W3 and the front door faced E towards the front of the property, where views were unobstructed. The alleged severe view obstruction was caused by T1. However, as had been established, T1 is not a hedge for the purpose of the Trees Act. T1 is an amenity tree.
Mr Pricken claimed previous owners of the respondents’ property pruned T1 at a height around the respondents’ cottage gutter level. This provided views towards the SE and S from the applicants’ first floor E facing veranda, whilst retaining privacy which the applicants and the previous neighbours considered reasonable. However, in keeping with their preference for a higher level of privacy, Mr and Ms Poiner elected to allow T1 to grow taller. Under the Trees Act, there is no height restriction for T1, per se.
As with obstruction of sunlight to windows, no orders are available under the Trees Act to remedy severe obstruction of views from a dwelling by amenity trees. Therefore, no remedy was available for obstruction of views by T1 from V1, nor from the first-floor veranda above W3 and the front door.
The applicants’ second nominated view obstruction (V2) was towards the SE through the S facing ground floor lounge room window, W2, which was west (W) of W1. T2 was said to be severely obstructing W2. As had been the case with the applicants’ claims for obstruction of sunlight, the applicants’ case was predicated on a hypothetical future obstruction, not on the current reality. Due to the immaturity, relatively short stature, and small size of the bamboo clumps comprising T2, I was satisfied view obstruction by T2 from W2 was negligible.
The respondents at least inferred that the applicants were making an ambit claim during a period when the respondents’ existing vegetation had been removed and the applicants were gaining views that had not been available for many years. Conversely, the applicants contended that landscaping and placement of privacy screens by the prior owners of the respondents’ land availed them high quality water views towards the SE. However, the applicants did not submit photographic or other evidence to substantiate this claim.
The applicants contended that T2’s rapid growth rate would render the improved views and light transitory and they would soon face a severe view obstruction. There is only limited scope under the Trees Act to make orders to remedy future severe obstructions: if the applicants had provided evidence, proving on the balance of probabilities that the respondents’ hedges had caused or were causing severe obstruction of a view and the situation was likely to recur. The hypothetical scenario proposed by the applicants did not satisfy these parameters.
Considering the impact of vegetation clearing by Mr Burgess, I concurred with the respondents’ claim that the applicants were likely to be receiving better views through W2 and more light through W1 and W2 than for many years prior. Therefore, the bamboo hedge, T2, does not satisfy s 14E(2)(a)(ii) of the Trees Act. Consequently, the applicants’ claim of severe obstruction of views by the respondents’ hedges is also refused.
As s 14E(2)(a) is not satisfied for obstruction of sunlight to a window of the applicants’ dwelling or for views from the applicants’ dwelling, there is no need to consider the balancing of interests at s 14E(2)(b) of the Trees Act.
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.
The Court is obliged to consider various matters pursuant to s 10 of the Trees Act.
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) of the Trees Act is satisfied, as it is the same service of application with notice requirement engaged at s 14E(1)(b) of Pt 2A.
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)).
The applicants claimed that T1 was likely to damage the SE corner of their dwelling roof, gutter, and eaves. T2 was allegedly likely to damage the dwelling wall, roof and gutter once the bamboo matured, along with the boundary fence and a side path. T3 was expected to damage the boundary ‘pool’ fence and the dwelling roof, gutter, and eaves at the SW corner. T4 was said to be encroaching or ‘running’ into the applicants’ land although alleged resultant damage was somewhat unclear as the area incurred minimal pedestrian usage.
I was satisfied T1 was likely to cause damage such as paint abrasion or loosening of the dwelling’s eaves/barge board. Though T3 was not as mature as T1, it was well established, with stems sufficiently close to the dwelling roof to make future damage probable, though not imminent. Though this damage by T1 and T3 would likely be minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger) indicates that even relatively minor damage engages the Court's jurisdiction.
The bamboo did not appear to have caused damage thus far, but I am satisfied that such damage by T1 and T3 is likely in the near future unless the bamboo is pruned away from eaves and gutters. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
Consequently, s 10(2)(a) of the Trees Act is engaged.
T3 had the propensity to cause damage to the boundary ‘pool’ fence if left unchecked but I was not satisfied this was likely in the near future. As to alleged damage by T2, this was foreseeable in the medium to long term if the bamboo was neglected, but it was unlikely to become a problem for many years. I am not satisfied that bamboo sweeping against the brick wall was likely to cause genuine damage.
Mr Burgess submitted evidence supporting his contention that Slender Weavers Bamboo presented minimal likelihood of future damage because it was a clumping bamboo. Though this position is presented in the marketing material of many bamboo merchants and regularly submitted to the Court by respondents, it is patently untrue. The Court repeatedly views and determines instances of damage to fences and similar structures by broadening clumps of Slender Weavers Bamboo along with encroachment of stems of Slender Weavers Bamboo beyond boundaries which may be construed as damage under the Trees Act. In this case, such evidence was visible before the Court, given the growth of T1 since 2017, from a small single plant to a clump perhaps 8m tall with a dense, clustered base over 1m wide. The rapid growth rate of T3 was also illuminating with respect to damage potential.
Nonetheless, such damage can be prevented with regular monitoring and root pruning maintenance. Mr Burgess provided a commitment to undertake such regular maintenance, and his clearance of the prior running bamboo and the extensive landscaping of his yard indicated his propensity to do so. I consider this approach to be more effective than root barriers, when monitoring is absent.
T4 was relatively trivial. It appeared to involve just a few small canes of running bamboo of indeterminate origin. Mr Burgess had attempted to remove and or poison the stems and he committed to ensure that T4 was treated until growth did not recur. I am satisfied this was a reasonable resolution and that orders were unnecessary for T4, other than providing Mr Burgess with access to undertake required works.
As s 10(2) of the Trees Act was 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.
Due to the elevated location of the bamboo deep within the respondents’ property, the bamboo provided minimal public amenity. The bamboo made little contribution to biodiversity, but it was an important component of the respondents’ garden design and landscaping and enhanced the garden’s ambience. This species can normally be lightly pruned relatively often without unduly affecting its health or function, particularly if provided with supplementary water during hot, dry summers.
The bamboo’s primary contribution was to privacy, which is the benefit of trees which respondents consistently prioritise under both parts of the Trees Act. The applicants were also concerned about privacy, as displayed by Mr Pricken’s initial discussion with Mr Burgess and picture frames placed in upstairs windows to prevent visual access.
The application under Pt 2A of the Trees Act for severe obstruction of sunlight to windows W1 and W2 of the applicants’ dwelling was refused. The primary basis for refusal was because W1 and W2 faced S. Even in the absence of any other obstructions, S facing windows can receive sunlight only during early mornings in summer. In this case, T1, a broad, tall bamboo clump, which was not a hedge for the purpose of the Trees Act, and the respondents’ cottage, heavily obstructed limited sunlight that may have otherwise reached W1 and W2. Further, W1 and W2 were recessed into a double brick wall by at least 100mm.
Additionally, T2, the allegedly severely obstructing sunlight to W1 and W2, originated from 6-7 clumps of bamboo, planted in December 2024. T2 had not yet established and had only grown a few canes that reached about 4m. Therefore, any sunlight obstruction caused by T2 was negligible.
With respect to alleged severe obstruction of views from a dwelling, the primary nominated viewing position was through E facing window, W3, on the front veranda, and on the first-floor veranda above this location. SE views towards the coast were severely obstructed by T1. However, T1 did not satisfy s 14A(1)(a) of the Trees Act as T1 originated from a single bamboo clump planted by Mr Pricken around 2017. Therefore, no remedy was available for this obstruction because T1 was not a hedge for the purpose of the Trees Act.
An alleged severe view obstruction from viewing point V2, through the lounge room window W2, was not sustained because of the small size of the recently planted T2. Consequently, orders proposed by the applicants on the basis of severe obstruction of views from their dwelling were also refused.
I concurred with the respondents’ submission that the applicants’ views through W2 and indirect light to W1 and W2 were probably better than the applicants had received for many years, as a result of the respondents’ vegetation clearing.
Under Pt 2, the Trees Act provides remedy for past and current damage, near future damage and risk of injury to persons. Minor damage to barge boards/eaves and gutters at either end of the S side of the applicants’ dwelling roof was considered likely in the near future and engaged s 10(2)(a) of the Trees Act. The applicants’ other damage claims were based on mere possible damage in the distant future.
The onus of proof underpinning civil jurisdictions is ‘on the balance of probability’. This provides for a reasonable balance between parties in dispute. Whilst I appreciate Mr Pricken’s desired to “future proof” his property from distant possible damage under Pt 2, and possible obstruction of views or sunlight under Pt 2A of the Trees Act, such an outcome would cause expense and loss of liberty to the respondents which would not reflect a reasonable balance between the parties. On this basis, I accept Mr Burgess’ submission that Mr Pricken sought to exert excessive influence or ‘overreach’ on the respondents’ right to choose how they manage their property. In more modern parlance, Mr Pricken’s claims reflect he peaked too soon.
It was unclear whether Mr Burgess was somewhat disingenuous about Slender Weavers Bamboo having negligible potential to cause damage, given he had the benefit of evidence to the contrary, in terms of the size and rapid expansion rate of T1 and T3. Regardless, he has access to my commentary at [84] and many judgments in Caselaw NSW where orders have been made due to damage and obstruction by Slender Weavers Bamboo. It is relevant to keep in mind that such orders also apply to subsequent property owners.
Notwithstanding the commitment of Mr Burgess to consistently monitor and maintain the bamboo in future, this reality may provide additional incentive to remain conscientious as the bamboo does have the propensity to ‘get away’ when people become complacent or distracted.
While there is no scope for a second application if the bamboo is kept maintained, should it cause damage or severe obstruction, and thus the ‘circumstances change’, the Court would accept and assess a further application which may be successful. Mindful of this, the respondents would be well advised to provide the applicants at least with a ‘tunnel’ view, SE towards the coast from W2 through T2, given that such views are currently available and T2 is likely to grow to otherwise obstruct current views. There is scope for such pruning to be crafted to simultaneously retain the respondents’ privacy.
Regular light pruning would mitigate minor dwelling damage likely in the near future due to T1 or T3, whilst not unduly stressing the bamboo. In keeping with the decision in Granger*,* this provides orders of the Court that are proportional to the nature and extent of likely near future damage.
The orders of the Court are:
Within 45 days of the date of these orders, the respondents, at their expense, shall prune T1 and T3 to at least 600mm below the eastern and western ends of the southern side of the applicants’ dwelling, including stems that are likely to slap against the applicants’ eaves and gutters during strong winds.
During the last 14 days of April 2026 and during the last 14 days of November 2026, and during the same period of April and November of each subsequent year, the respondents, at their expense, shall repeat the pruning in accordance with Order (1).
The pruning works shall be completed by an Australian Qualification Framework (AQF) level 3 qualified arborist or horticulturist who holds all appropriate insurances.
All pruning shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be undertaken during reasonable daytime working hours.
Should access to the applicants’ property be required to undertake the pruning works or to remove or poison residual stems of T4, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of order (3), upon receipt of at least 48 hours written notice of the date and approximate start time of the works.
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Pricken
Burgess [2025] NSWLEC 1776
(2012) 190 LGERA 334
(2008) 72 NSWLR 98
(2008) 159 LGERA 280