The Owners – Strata Plan No 6286 v Horder

Decision date: 24 February 2026

Jurisdiction: Class 2

Before: Galwey AC

Decision: The Court orders:
(1) The application is granted to the extent of the following orders.
(2) For as long as the hedge adjacent to the respondents’ southern boundary remains, in April each year beginning in April 2026, the respondents are to engage and pay for a suitably qualified, experienced and insured horticultural or arboricultural contractor to:
(a) prune the hedge so that no part of the bamboo is greater than 4 metres above ground level of their cabana area, and
(b) remove any bamboo overhanging the applicant’s property.
(3) If the respondents wish to access the applicant’s property to carry out the works in (2), they are to give the applicant at least 21 days notice of each instance of the work in (2), and are to provide the applicant with a copy of their contractor’s public liability insurance.
(4) If given notice as per (3), the applicant is to allow access for a small aerial lift, such as a spider lift, between 9:30 am and 2:30 pm on the designated day, for the contractor to complete the pruning works in (2).
(5) If the respondents seek and are granted access to the applicant’s property for the pruning works in (2), upon completion of those works their contractor is to clean up any debris on the applicant’s property within 6 metres of the shared dividing fence.
(6) For as long as the hedge remains, in April each year beginning in April 2026, the respondents or their contractor are to remove any bamboo culms within 100 mm of any part of the shared dividing fence.
(7) The exhibits are returned, other than Exhibit A.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring trees — bamboo hedge — obstruction of views and sunlight — whether the obstruction is severe — privacy — potential sale of the applicants’ property — balancing of interests — orders for pruning, maintenance and access

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 3, 14A, 14B, 14C, 14D, 14E, 14F, 16

Cases Cited: Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Voeten v Adams [2011] NSWLEC 1106

Category: Principal judgment

Parties: The Owners – Strata Plan No 6286 (Applicant)
Josephine Horder (First Respondent)
Luke Horder (Second Respondent)

Representation: Counsel:
M Dhakal (Agent) (Applicant)
A Hannam (First and Second Respondents)
Solicitors:
McLachlan Thorpe Partners (First and Second Respondents)

File Number(s): 2025/425974

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** These proceedings, as in many other neighbourhood tree disputes, involve a bamboo hedge that provides privacy benefits valued by its owners, and at the same time obstructs sunlight and views for neighbouring residents. The properties are in Freshwater, on Sydney’s northern beaches. The hedge’s owners, Josephine and Luke Horder (the Horders), and their neighbours to their south, The Owners – Strata Plan No 6286 (the Strata), have corresponded for some time as the Strata sought relief from the hedge’s impacts to several of their dwellings. With no agreement reached, the Strata applied to the Court pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), seeking orders for the Horders, at their cost, to regularly prune the bamboo so as to maintain it at a reduced height and to reduce the amount of debris shed onto the Strata’s property. The Strata also seeks an order for the costs of making its application. Commissioners of the Court lack the power to make an order for costs, so the Strata, should it wish to pursue costs, would need to file a Notice of Motion with the Court once this judgment is handed down.

2. The final hearing took place onsite, allowing me to observe the bamboo and issues of privacy and view and sunlight obstruction. Mr Milendra Dhakal, an owner of one of the Strata’s affected dwellings, represented the Strata as its agent. Mr Angus Hannam, of Counsel, represented the Horders. Beside the Strata’s application forms, the Court read the affidavits of Milendra Dhakal and Josephine Horder. The Horders filed the expert report of arborist Catriona Mackenzie (Exhibit 2) and their proposed alternative orders (Exhibit 3).

3. Both parties wish the Court to make orders. The Strata wants orders to restore their access to sunlight and views, and to specify the terms of access to their property for any works. The Horders want orders to allow them access to the Strata’s property for maintaining their hedge. The parties only disagree on the nature of the orders, especially as to the height of the hedge and the terms of property access. Orders from the Court would be desirable, as they would minimise the potential for ongoing argument, noting that such orders cannot completely satisfy the wishes of both parties. In making this decision, I also consider the potential upcoming sale of the Horders’ property, which is on the market and scheduled for auction shortly. Orders should minimise the potential for disputes to arise between the Strata and future owners of the Horders’ property.

The trees are planted so as to form a hedge

4. It is not contested that the bamboo is planted so as to form a hedge rising to at least 2.5 metres tall: see s 14A of the Trees Act. Bamboo is a tree for the purposes of the Trees Act: s 3 of the Trees Act. Therefore, Pt 2A of the Trees Act applies to the bamboo.

Orders sought relate to trees on adjoining land

5. Pursuant to s 14B of the Trees Act, the Strata seeks orders to remedy, restrain or prevent the bamboo’s severe obstruction of sunlight to windows and views from dwellings on their land. The trees are situated on adjoining land.

Nature of the orders

6. Orders for pruning and ongoing maintenance of the hedge, and for access to the applicant’s property, are orders the Court can make at s 14D of the Trees Act. The Court is not required to make the orders sought by either party, but can make orders as it sees fit having considered all relevant parts of the Trees Act.

The applicant made a reasonable effort to reach agreement

7. As to s 14E(1) of the Trees Act, it is not contested that the Strata made a reasonable effort to reach an agreement with the Horders regarding the hedge, and gave notice of the application as required by s 14C of the Trees Act.

The bamboo hedge severely obstructs sunlight and views

8. Before the Court makes an order in these proceedings, it must be satisfied that the bamboo is severely obstructing a view from a dwelling or sunlight to a dwelling’s window, where the dwelling is situated on the applicant’s land: s 14E(2)(a) of the Trees Act.

9. It is not contested that the hedge severely obstructs a view from dwellings in the Strata’s building.

10. Considering the importance of winter sunlight to dwellings, and that the obstructed windows are the only north-facing windows for four units, I also find that the trees cause a severe obstruction of sunlight.

11. Before the Court makes an order in these proceedings, it must further be satisfied that the applicant’s interests in obtaining orders outweigh any reasons to avoid interfering with the bamboo: s 14E(2)(b). The Horders emphasised that privacy is their primary reason for wishing to maintain their hedge at its current height. I find that the Strata’s interests outweigh, to some extent at least, the Horders’ wishes to maintain the current conditions. In reaching this conclusion, I have considered the matters at s 14F and discuss below those that are relevant. The main issues to be determined are those of pruning height and frequency, and access to the applicant’s property for pruning works.

Consideration of relevant matters

12. The bamboo hedge is against the common boundary and a little over 6 metres from the Strata’s north-facing windows in the application.

13. According to information readily available on Northern Beaches Council’s website, council consent would not be required to prune or remove the hedge.

14. The hedge was planted and has grown to a height of more than 2.5 metres during the occupancy of some affected dwellings: for example, windows W3 and W4.

15. The bamboo has no significant environmental value, nor does it contribute to public amenity. Its principal value is its contribution to privacy for the Horders. The hedge screens some of the Strata’s windows from the Horders’ property, but Mr Dhakal submitted that the issues of sunlight and views outweigh their own privacy concerns.

16. Ms Mackenzie stated, and I accept, that the bamboo is slender weavers bamboo (Bambusa textilis var. gracilis), which would tolerate pruning and maintenance to a height of 2 metres without adverse impacts to its health.

17. Ms Mackenzie’s report includes aerial images showing that a large tree that grew in the southern section of the Horders’ property up to at least 2013 was removed by 2018. The Horders submitted that this tree would have obstructed views from the Strata’s windows until it was removed. However, they provided no information on the size or species of the tree, or whether it was deciduous or evergreen. Its effect on views and sunlight for the Strata may have differed greatly from the bamboo’s effect.

18. The Strata wrote to the Horders several times from the middle of 2024 onwards, requesting a reduction in the bamboo’s height. While the Strata seems to have misunderstood the height threshold at s 14A of the Trees Act as a restriction on hedge height, their intent was to restore at least some of their access to sunlight and views.

19. The Horders had the hedge pruned in December 2025, a month or so after the Strata filed its application with the Court. In response to the Strata’s earlier written requests for a reduction in the bamboo’s height, the Horders wrote back that they had no obligation to prune the hedge, and they denied that the hedge, even at its then greater height, obstructed any views or sunlight for the Strata’s dwellings. They wrote that if the hedge were to be pruned, it would be to the height of the Strata’s top-floor balcony or windows (significantly taller than the height they pruned to after receiving the Strata’s application). The Horders also made unsubstantiated claims about the character of a resident in the Strata’s building, but those claims do not assist this decision and do not need repeating here.

20. The Strata adjoins several properties with hedges. Access to the Strata’s property is likely to be required for pruning most of these hedges, so they want orders for access to minimise impacts to their residents. For this reason, they refused access to the Horders when the Horders provided insufficient notice for the Strata to inform all residents and to ensure carparks would be empty.

21. The bamboo is evergreen. It creates a dense screen throughout the year. Two bedrooms in each of four dwellings are impacted – eight windows altogether. Photographs show that district views were available from these eight bedrooms in 2019, whereas in 2025 these rooms looked out onto a wall of bamboo 6 metres away. Mr Hannam submitted that the district view is not iconic in any way, so is not a valuable view. Mr Dhakal submitted that this view is the only outlook from these apartments, as their other rooms face onto other apartments in the Strata.

22. Photographs in Exhibit A show the hedge obstructing sunlight to all eight windows at various times of the morning and early afternoon in June 2025, not long before the Horders wrote that the bamboo caused no obstruction. The Horders provided photographs (in Exhibit 1) showing unobstructed sunlight to all these windows. The Horders photographs were taken during summer: December 2025 and January 2026. It is winter sunlight that the Strata’s residents value most and that is obstructed by the hedge, to the extent that the sunlight obstruction is severe.

23. The affected rooms are bedrooms, their windows are north-facing. Mr Hannam argued that the obstruction to bedroom windows should not be considered as significant, and should certainly not outweigh the Horders’ privacy concerns. As well as referring to the view-sharing principle established at [23]-[29] in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 (Tenacity), Mr Hannam took the Court to Voeten v Adams [2011] NSWLEC 1106 (Voeten), in which the Court considered the affected rooms at [43]-[45] and ultimately determined that the sunlight obstruction was not severe. Mr Dhakal argued that the living areas of the four affected dwellings face south, with no winter sunlight and with no pleasant outlook. He submitted that the apartments are small, with their living areas adjacent to their bedrooms, so they rely more on the bedroom windows to provide light and outlook for their entire apartments.

24. The view-sharing principle established at [23]-[29] in Tenacity includes at its third step:

“The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them).”

25. This does not suggest, as is often assumed, that a view from a bedroom has no significance, but only that any impact on that view will generally be less significant than the impacts to living areas. In the current proceedings, the best outlook from the affected dwellings is from their bedrooms, and it is severely obstructed. The south-facing living room windows have a limited outlook. The dwellings are small. I accept Mr Dhakal’s submission that the view impact to the whole of each affected dwelling is severe.

26. In Voeten, the Court reduced the significance of the sunlight and view obstruction to certain windows, but the circumstances in each case differ and must be considered on their own merits. In Voeten, Fakes C and Hewett AC noted at [44] that the bedroom had a skylight and at [45] that the affected dining room was within the main living room that had views of the Harbour and heads through a large bay window. In the current proceedings, I accept the importance of the bedroom windows for the apartments’ residents.

27. The Strata complained that the bamboo reduced airflow within several apartments. While the recent pruning of the bamboo remedied this issue in apartments higher in the building, the problem persists for lower apartments. Airflow is not specifically identified at s 14F, but could be considered at s 14F(s): “such other matters as the Court considers relevant in the circumstances of the case.” This issue is clearly not a priority for the Trees Act so I’ve given it little weight in this decision.

28. The Strata submitted that the bamboo might damage the fence. Mr Hannam rightly pointed out that the Strata applied for orders under Pt 2A of the Trees Act (hedges obstructing sunlight or views), not Pt 2 (trees causing damage, or likely to cause damage or injury). The Horders have used ties and cables in an attempt to hold bamboo culms together and keep them off the fence. The Strata submitted that the Horders have their property on the market and the next owner might not maintain this practice. Even with the tying together of culms, I noted that some culms are close to the fence and their tops overhang, or will overhang, the Strata’s property, their proximity to the affected windows exacerbating their potential for sunlight obstruction. Removal of culms closest to the fence would allow more sunlight and would have the added benefit of minimising the potential for damage to the fence.

29. In determining a suitable height for the hedge, I have considered the benefit of restoring views and sunlight for the Strata against the Horders’ desire for privacy screening. In their correspondence, the Strata suggested a height of 4 metres. In their proposed alternative orders, the Horders suggested 6 metres, measured from the floor level of their outdoor cabana near the hedge. The hedge was around 6 metres at the time of the hearing and still severely obstructed the view from windows on the Strata’s lower floors. I noted too that the Strata’s top floor windows already overlook the back of the Horders’ dwelling, but not their pool.

30. The Strata’s proposed hedge height of 4 metres seems to strike a reasonable balance. Rather than limiting the hedge to that height, orders will require it to be pruned to that height once each year during April. This should maximise the Strata’s winter sunlight access but allow regrowth over 12 months to reach a greater height during summer, when the Strata’s sunlight access is not affected and privacy screening to the Horders’ pool might be most appreciated. As suggested by the parties during submissions, access to the Strata’s property must be provided on 21 days notice. To minimise impacts to residents’ carparking, access is to be provided between 9:30 am and 2:30 pm for a small mobile lift such as a spider lift. As well as reducing the hedge’s height, contractors are to prune all overhanging bamboo back to the boundary and, as the Horders suggested, clean up bamboo debris on the Strata’s land. Any bamboo culms that are within 100 mm of any part of the fence are to be removed.

31. As noted already, the Horders have their property on the market. Pursuant to ss 16(1A) and 16(2) of the Trees Act, if the Strata gives a copy of the orders to the Horders’ successor in title, the immediate successor in title is bound by the orders.

Orders

32. The Court orders:

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

34. For as long as the hedge adjacent to the respondents’ southern boundary remains, in April each year beginning in April 2026, the respondents are to engage and pay for a suitably qualified, experienced and insured horticultural or arboricultural contractor to:

(a) prune the hedge so that no part of the bamboo is greater than 4 metres above ground level of their cabana area, and (b) remove any bamboo overhanging the applicant’s property.

3. If the respondents wish to access the applicant’s property to carry out the works in (2), they are to give the applicant at least 21 days notice of each instance of the work in (2), and are to provide the applicant with a copy of their contractor’s public liability insurance.
4. If given notice as per (3), the applicant is to allow access for a small aerial lift, such as a spider lift, between 9:30 am and 2:30 pm on the designated day, for the contractor to complete the pruning works in (2).
5. If the respondents seek and are granted access to the applicant’s property for the pruning works in (2), upon completion of those works their contractor is to clean up any debris on the applicant’s property within 6 metres of the shared dividing fence.
6. For as long as the hedge remains, in April each year beginning in April 2026, the respondents or their contractor are to remove any bamboo culms within 100 mm of any part of the shared dividing fence.
7. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

**********

Amendments

10 March 2026

Legalisation and First Respondent amended