Tang V Bacic

File Number(s): 2025/105166

Publication restriction: Nil

JUDGMENT

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

1. COMMISSIONER: Mr Tang (‘the Applicant’) applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Act), seeking orders for the Respondents to remove trees located on the front side boundary between the properties. The hedge is close to the Respondents’ front side boundary of 6 Mabel Street Kingsgrove. The Applicant owns 4 Mabel Street Kingsgrove, and shares a side boundary with the Respondents.

2. The Applicant also seeks orders to remove fill and retaining walls along the shared boundary with the Respondents in accordance with NSW State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Exempt and Complying Development Codes SEPP), Earthworks, retaining walls and structural support, ss 2.30 (a) and (b).

3. The Applicant seeks orders for compensation including loss of income, transportation and other expenses.

4. The Respondents, the Bacic’s, enjoy the privacy and amenity the hedge provides for the front yard and seeks to maintain the trees in their current state, including regular winter pruning. The hedge consists of six Pyrus nivalis (Pear) trees planted as a part of a landscape design in 2023 and has reached a height of approximately 2.5 - 3 metres. Mr Bacic maintains the hedge by way of trimming and thinning regularly during the winter months.

5. The Applicant is concerned about the amount of sunlight reaching the front room of their dwelling and submits the amount of shade cast by the hedge onto their property is unreasonable and could easily be remedied by removing the trees.

6. The Applicant is also concerned the potential for damage to foundations of the house and other sub-surface infrastructure (gas, water, stormwater) caused by the growth of tree roots.

7. The application is made pursuant to s 14 Pt 2A of the Act.

Framework of the Trees (Disputes Between Neighbours) Act 2006

8. Within the Act, there are several jurisdictional tests that must be satisfied before the Court can make orders, and a range of discretionary matters to be considered if orders are to be made.

9. Some jurisdictional tests are clearly met. I am satisfied that the Applicant has tried to reach agreement with the Respondents (s 14E(1)(a)). The trees are on adjoining land (s 14B) and rise to more than 2.5 metres in height (s 14A(1)(b)). The trees have been planted so as to form a hedge (s 14A(1)(a)). The hedge is a tree for the purpose of the Act (s 3). On these matters the parties are agreed.

10. If any of the tests are met, the Court's power under s 14D (1) of the Act to make any orders it thinks fit under s 14D (2) of the Act is engaged.

11. The issues to be determined then are as follows.

12. Is there a severe obstruction of sunlight caused by the hedge?

13. If so, does the Applicant’s desire for direct sunlight outweigh the reasons not to interfere with the trees? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

14. An order must not be made unless the hedge is severely obstructing sunlight to a window of a dwelling situated on the Applicant’s land, and the severity and nature of the obstruction is such that the Applicant’s interest in having the hedge pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the hedge.

15. The following addresses matters that must be considered in determining whether orders are appropriate.

16. The hedge is located to the north-east of the Applicants property and would cast shade during some parts of the day. However, there is other vegetation located to the north on other properties that would still cast shade even if the hedge was pruned or removed.

17. The hedge was planted on the Respondents’ property in 2023 and after the Applicant’s purchase of 4 Mabel Street.

18. The Respondents submit that the hedge was planted as a part of a planned landscape design to act as a privacy hedge and for the overall amenity benefits, and that severely pruning or removing the hedge would diminish these attributes.

19. During the onsite hearing I observed the position of the sun relative to the dwelling and front yard and resultant shade patterns, and concluded that, when including other trees and vegetation, the hedge added to the loss of sunshine by between approximately a half and one hour of morning sun during winter, and less than this during other seasons due to the higher position of the sun during those periods.

20. The part of the dwelling affected by shade is a living room area.

Is there a severe obstruction of sunlight?

14. During the onsite hearing the Applicant took us to relevant parts of the property, including inside the dwelling. Based on its current height, I accept that there may be a minor obstruction of sunlight to the Respondents’ living room window caused by the hedge, but I do not accept that it is severe. When including other vegetation (street trees) casting shade towards the Applicant’s dwelling, the hedge does not cast a major amount of shade nor anything that represents a complete loss of sun.

Discretionary matters

15. 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 if the obstruction occurs as a consequence of trees being situated on adjoining land.

16. I can see nothing at s 14B of the Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Act. However, the Court has relied upon background material such as the 2009 Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the 2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462. The 2009 Review concluded (on p 35) that the scope of Pt 2A in terms of hedge height:

“…in recognition of the significant health, environmental and other benefits of urban vegetation, there could be a presumption in favour of maintaining the existence and health of urban trees.”

17. As I am not satisfied that there is a severe obstruction of sunlight, orders will not be made and the application will be dismissed. However, even if I were to accept the Applicant's contention that the hedge causes a severe obstruction of sunlight to the living room, I would be required to consider the matters at s 14F before making any orders, including s 14F(m): "anything, other than the trees, that has contributed, or is contributing, to the obstruction".

18. To sufficiently restore sunlight, the hedge and additional vegetation located on other properties to the north including a large brushbox street tree would need to be removed. This street tree is not part of the hedge. I find that pruning and maintaining only the hedge, which would be the only plants over which the Court could have jurisdiction if I were satisfied that the sunlight obstruction is severe, would not restore the sunlight to the extent sought by the Applicant. Therefore, if I had found otherwise on the jurisdictional question, I would still not be making orders after consideration of s 14F(m).

Retaining walls and fill

19. The Applicant seeks orders to remove fill and retaining walls along the shared boundary with the Respondents and submits that these construction works are not in accordance with Exempt and Complying Development Codes SEPP, Earthworks, retaining walls and structural support, ss 2.30(a) and (b).

20. During the onsite hearing I observed a retaining wall constructed of treated pine and Colorbond steel boundary fence, and both appeared to be in good condition. I did not observe any features that were not in accordance with the Exempt and Complying Development Codes SEPP for Earthworks, retaining walls and structural support, ss 2.30(a) and (b). No orders will be made in relation to retaining walls or fences.

21. No valid submissions were made by the Applicant that included any details regarding compensation. The request for orders for compensation is dismissed.

Conclusion

22. Only the Pyrus trees are planted so as to form a hedge. Considering the overall view from each window and the living room, I am not satisfied that the hedge causes a severe obstruction of sunlight. Therefore, the Court's jurisdiction under Pt 2A of the Act is not engaged.

23. Although I am not privy to the details, I note the Respondents offer to the Applicant for pruning. There is nothing to prevent the parties reaching such an agreement, which may address most of the Applicant’s concerns while maintaining the benefits of the hedge for the Respondents.

24. As a result of the above, the application is dismissed.

Orders

25. The Orders of the Court are:

26. The application to remove the hedge is dismissed.

27. The request for orders to remove fill and retaining walls along the shared boundary is dismissed.

28. The request for orders for compensation is dismissed.

P Nichols

Acting Commissioner of the Court

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