Waugh v Payne

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — high hedges — severe obstruction of sunlight — Are the trees hedges for the purpose of the Trees Act? — the scope of the Trees Act is limited to cases where the applicant themselves has lost the light or view — limited pruning ordered

Legislation Cited: Interpretation Act 1987 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A, ss 10, 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hendry v Olsson [2010] NSWLEC 1302
Hickey v Inman [2022] NSWLEC 1491
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Steber v Job [2019] NSWLEC 1308
Thompson v Quine [2021] NSWLEC 1645
Wein v Reeves [2022] NSWLEC 1019

Texts Cited: NSW Department of Justice & Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), November 2009
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016

Category: Principal judgment

Parties: James Brinton Waugh (Applicant)
Brian Payne (First Respondent)
Alison Blackman (Second Respondent)

Representation: Counsel:
J Waugh (Self-represented) (Applicant)
B Payne (Self-represented) (First Respondent)
A Blackman (Self-represented) (Second Respondent)

File Number(s): 2025/242048

Publication restriction: Nil

JUDGMENT

Background

1. Commissioner: In or around November 2023, Mr James Waugh, the applicant, occupied the first floor of a two-storey house in Elanora Heights with his young family. The respondents, Mr Brian Payne and Ms Alison Blackman, occupy an adjoining property to the north. Mr Waugh’s dwelling was located close to his northern side boundary which was the respondents’ rear boundary.

2. Mr Payne and Ms Blackman purchased and occupied their property in 2000. They contend that two Lilly Pillies and two Broad leaf paperbarks trees were already established in the southwestern corner of their backyard upon their occupation. The back yard is surrounded by vegetation and an inground swimming pool located on the eastern side was added more recently.

3. The respondents valued privacy provided by the trees and planted two rows of Murraya paniculata (Murraya trees) and Slender weavers bamboo (the bamboo) along their southern boundary. The Murraya, bamboo, and the now mature Lilly Pilly trees are all subject of the application.

4. Mr Waugh alleged the trees’ foliage severely obstructed sunlight to four north facing first floor dwelling windows (W1-W4). He described W2 as a children's bedroom that was cold and dark from autumn to spring, when it allegedly received almost no unobstructed sunlight. In a message to the respondents on 27 April 2025, the applicant said, “We are really keen to get some sunshine so our boys have a healthy environment through winter.” Mr Waugh included a photograph of a mould covered cap in his application to illustrate the alleged unhealthy environment.

5. In June 2025, the applicant contacted the respondents to request pruning of high and overhanging foliage from the trees. The respondents pruned the bamboo and Murraya trees to about five metres (m) tall but refused to prune the Lilly Pillies. The respondents were allegedly awaiting pruning advice from an arborist and contended that the requested pruning required permission from Northern Beaches Council (Council).

6. Although Mr Waugh appreciated the resultant increased light, in the absence of Lilly Pilly pruning and confidence that bamboo and Murraya regrowth would be maintained regularly, the applicant anticipated that relief from obstructed sunlight would be transitory. Consequently, on 24 June 2025, Mr Waugh made an application, pursuant to s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), proposing the Court make the following (summarised) orders:

“The respondents, at their expense, shall undertake ongoing maintenance of evergreen hedges (T1 Lilly Pilly, T2 bamboo and T3-T5 Lilly Pilly), to maintain the height of the trees below the gutter line of the applicant’s dwelling and restore reasonable sunlight into the second story bedrooms and bathroom of the applicant’s dwelling. The rapid growth rate of bamboo and Lilly Pilly trees shall be considered in the determination of the frequency of maintenance. The Broad-leaved paper bark trees (T6 and T7) were excluded from the proposed orders.”

7. The respondents submitted that any orders for intervention with the trees should nonetheless maintain their privacy and prevent the applicant overviewing their swimming pool, back yard and the rear of their dwelling.

Jurisdictional requirements

8. Part 2A of the Trees Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court must consider a series of jurisdictional tests before any orders can be contemplated. The Court must be satisfied that trees forming a hedge are causing a severe obstruction of sunlight to a window of an applicant’s dwelling, or a view from the applicant’s dwelling.

9. Even when the jurisdictional tests are satisfied, before making any orders the Court is required to balance the benefits and contributions of the trees, at s 14F, against the interests of the applicant and the imperative for intervention. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122.

10. Section 14A(1) of the Trees Act states:

14A Application of Part

(1) This Part applies only to groups of 2 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).

11. 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 the 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.

12. Section 14C(1) of the Trees Act stipulates requirements for notice of application for order to be given to owners of affected land, as follows:

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the trees are situated, and

(b) any relevant authority that would, in accordance with section 14G, be entitled to appear in proceedings in relation to the trees, and

(c) any other person the applicant has reason to believe will be affected by the order.

13. Section 14D of the Trees Act specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the 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)).

14. Section 14E of the Trees Act addresses the following matters, of which 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.

15. Section 14E(2), which is particularly significant, says:

(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.

16. If the Court is satisfied an obstruction is severe, at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of the following matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

17. Section 14F: Matters to be considered by the Court

(a) 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,

(b) 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),

(c) whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land,

(d) whether interference with the trees would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(e) any other relevant development consent requirements or conditions relating to the applicant’s land or the land on which the trees are situated,

(f) whether the trees have any historical, cultural, social or scientific value,

(g) any contribution of the trees to the local ecosystem and biodiversity,

(h) any contribution of the trees to the natural landscape and scenic value of the land on which they are situated or the locality concerned,

(i) the intrinsic value of the trees to public amenity,

(j) any impact of the trees on soil stability, the water table or other natural features of the land or locality concerned,

(k) the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees,

(l) 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,

(m) anything, other than the trees, that has contributed, or is contributing, to the obstruction,

(n) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify the obstruction

(o) 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 the sunlight is lost,

(p) whether the trees lose their leaves during certain times of the year and the portion of the year that the trees have less or no leaves,

(q) the nature and extent of any view affected by the obstruction and the nature and extent of any remaining view,

(r) the part of the dwelling the subject of the application from which a view is obstructed or to which sunlight is obstructed,

(s) such other matters as the Court considers relevant in the circumstances of the case.

The onsite hearing: submissions and observations

18. The hearing was conducted onsite and commenced with an inspection of the respondents’ southern boundary trees. Both parties were self-represented. As often occurs, Mr Waugh mis-identified some tree species within his application. Relevant mistakes were the Murraya trees (T1 and T4) identified as Lilly Pillies and the Broad-leaved paper bark trees (T6 and T7) identified as Ironbark trees.

19. Mr Payne and Ms Blackman submitted an Arboricultural assessment and report (the report) by Arterra Design Proprietary Limited, dated 30 July 2025. I bring arboricultural expertise to the matter.

20. The Court assessed the applicant’s property for obstruction of sunlight to four windows (W1-W4) nominated in the Claim Details (High Hedges) Form G.

The applicant’s submission

21. The initial contested issue was whether the trees formed a hedge for the purpose of the Trees Act. Mr Waugh contended that the entire group of trees in the respondents’ yard should be considered a hedge as they performed a screening role, typical of a hedge. He submitted that the relatively recent planting of two rows of closely planted Murraya trees and bamboo to augment screening by the established trees, added weight to his argument that the intention of the initial Lilly Pilly planting was the establishment of a privacy screen or hedge. Mr Waugh claimed the respondents’ trees collectively formed a hedge based on their arrangement in linear rows with relatively uniform gaps between trees. He acknowledged not knowing the intent of the original planting but noted that Lilly Pilly trees were typically used for hedges.

22. At Appendix 5 of Form G, Mr Waugh noted similar circumstances in Thompson v Quine [2021] NSWLEC 1645 (Thompson), where Lilly Pilly trees were found to form a hedge and pruning was ordered, reinforced his claims for pruning. In Form G, Figure 3 on page 19, Mr Waugh displayed a text message which showed that the respondents valued the trees for privacy, and claimed this supported his case.

23. Although canopies of the Broad-leaved paperbark trees (T6-T7) were intermingled with the Lilly Pillies and other trees near the common boundary, Mr Waugh said T6-T7 were not severely obstructing sunlight, and he did not claim they were part of a hedge.

24. Considering the severity of obstruction, Mr Waugh claimed the height and boundary encroachment of dense foliage, especially from the Syzygium luehmannii (T5), were sufficient to cause severe sunlight obstruction. He said severe sunlight obstruction caused by the bamboo was likely to rapidly recur. Mr Waugh referenced Form G, Figure 6 on page 22, which illustrated the obstruction of sunlight by T1, T2, and T3 and he also included shadow diagrams.

25. Mr Waugh contended that power output from solar panels was far lower from panels close to the trees than from west facing panels further south from the trees. He submitted that this was an objective scientific measure of sunlight obstruction and claimed sunlight obstruction of windows directly below the solar panels was particularly severe. Mr Waugh reiterated that the cold and mould resulting from sunlight obstruction were unhealthy.

26. The applicant claimed that in 2022, the trees were around the height of his gutters, which was his proposed pruning height. To illustrate the bamboo’s growth rate, Mr Waugh noted a photograph at Figure 2.15 on page 24 of the report which he said showed no bamboo in December 2021 compared with bamboo 8m tall by May 2025. He alleged the report overemphasised questionable benefits of the trees and contained elements that were biased.

27. Mr Waugh included aerial images of the hedge in November 2023 and February 2025 in Figure 4 and Figure 5, respectively, on page 20 of form G. He contended that there had been significant Murraya and bamboo hedge growth in the interim and alleged the Lily Pilly trees would have also grown at a rapid rate, akin to the bamboo.

28. Mr Waugh disputed a contention from the respondents that filtered sunlight penetrated through the hedge to the windows. He also noted that the extension of his dwelling towards the boundary, which included the addition of W1, occurred prior to his occupation.

29. Considering elements at s 14F which inform the balance required at s 14E(2)(b) of the Trees Act, Mr Waugh claimed that pruning the Lilly Pillies down to the gutter level of his dwelling will result in more regrowth and will not reduce privacy for the respondents. He said the respondents’ shade would not be adversely affected because shading by the trees is cast southward onto his land. Consequently, Mr Waugh contended that reducing the height of the Lilly Pillies to his gutter level would not compromise the trees nor badly impact the respondents’ visual amenity, but it would greatly assist his family.

The respondents’ position

30. The respondents reiterated that the Lilly Pilly trees on the southwestern side of the rear yard that predated their occupation, did not form hedges but the Murraya trees did form a hedge or hedges. This conclusion was consistent with the report, which was the basis of the respondents’ case.

31. Mr Payne and Ms Blackman claimed the obstruction of sunlight to the applicant’s windows was not severe because light penetrated through gaps between the Lilly Pilly canopies where the Melaleuca foliage was sparse and low enough for filtered sunlight to reach bedroom windows in the middle of the day for a couple of hours at the winter solstice.

32. The respondents noted that the applicant’s living room containing W1 was part of a relatively recent extension close to the common boundary and that the applicant’s dwelling mainly faced south. The respondents rejected that the mouldy hat was indicative of an unhealthy environment, especially in the absence of a mould report.

33. Mr Payne and Ms Blackman claimed permission from Council was needed for the pruning of the two established Lily Pilly trees and the proposed pruning to gutter height was excessive and would damage the trees.

34. The respondents proposed the following (summarised) alternative orders:

1. The Murraya hedge comprising T1 and T4 is to be pruned and then maintained by the respondents to a height of less than 5 metres.

2. The bamboo (T2) is either pruned and maintained to a height of no more than 5 metres by the respondents or removed entirely.

3. No pruning or other action is offered or warranted for T3, T5, T6, T7 or T8.

Findings

Do the trees form a hedge?

35. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?

36. Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of 2 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).

37. The respondents confirmed that they planted the Murraya trees and bamboo along their southern boundary. There were six closely planted Murraya trees (T1) near the eastern boundary and a similar row closer to the middle on the western side (T4). They appeared to be about 4-5m tall. The Murraya trees thus satisfied s 14A(1) and are a hedge or hedges for the purpose of the Trees Act.

38. The bamboo (T2) was about 5-6m tall and it linked the two rows of Murraya trees so they cumulatively formed a screen. Whether the bamboo was a member of the hedge was ambiguous. The report noted that the Murraya trees had been planted, “albeit some 20 years prior”, near the “existing bamboo” but the clump of bamboo which linked the Murraya trees appeared to be far less than 20 years old. Further, the respondents had recently pruned the bamboo’s height along with the Murraya trees and their proposed alternative orders included periodic pruning of both the Murraya trees and the bamboo. Consequently, taking a purposeful approach, I consider the bamboo to be a component of a hedge for the purpose of the Trees Act.

39. Bar a few exceptions, judgments arising from procedures at the Court are published and readily available in Caselaw NSW (www.caselaw.nsw.gov.au). This body of precedents in Caselaw NSW display the reasoning underpinning decisions of judges and commissioners. Most cases under the Trees Act are heard by commissioners. When circumstances of a case mimic a precedent by another commissioner, the rationale for decisions in the precedent are usually followed to the extent of the similarity, thus providing a base for consistent decision making. When circumstances of a case are like those of an appeal before a judge, the rationale for relevant decisions in the precedent is binding on commissioners, thus the reasoning of the judge must be followed.

40. In Thompson, Ms Quine’s solicitor, Ms Yeatman, argued that Pt 2A of the Trees Act did not apply to Ms Quine’s Lilly Pilly trees because they were not planted with an intention to form a hedge. Ms Yeatman referenced Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson); at [28], where Chief Justice Preston stated:

“[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.”

41. However, Acting Commissioner Galwey disagreed and determined that the trees formed a hedge for the purpose of the Trees Act.

42. Mr Waugh contended that the circumstances and reasoning in the Thompson judgment applied such that Mr Payne and Ms Blackman’s Lilly Pilly trees were members of a hedge. In Thompson*,* at [8]-[9], Acting Commissioner Galwey stated:

“8 ‘Hedge’ is not defined within the Trees Act. Ms Quine might have her own opinion as to what forms a hedge. In my view, and in the many hedge matters that have come to the Court, a hedge will have a combination of some or all of the following features: a linear planting style, trees of a single species or alternate plantings of few species, close and regular planting spacings, foliage of adjacent trees meeting and forming a continuous screen, and the trees may or may not be pruned to a formal shape: see also Wisdom v Payn [2011] NSWLEC 1012 at [45]. Ms Quine’s lilly pillies were planted to create a dense privacy screen taller than the boundary fence, and they meet the description of a hedge given above. I find the lilly pillies are planted so as to form a hedge.

9 The bottlebrush (Tree 8 in the application) is a different species. Some physical separation between the bottlebrush and lilly pillies is apparent in photographs. I find it is a separate tree, not part of the hedge. Therefore Part 2A of the Trees Act does not apply to the bottlebrush, regardless of its impacts on Ms Thompson’s views or sunlight.”

43. I was not persuaded by Mr Waugh’s argument, firstly because “close and regular planting spacings” is a key ‘hedge feature’ that did not apply with the respondents’ Lilly Pilly trees. Instead, the two Lilly Pilly trees were planted about 4-5m apart, with sufficient space between them to grow to about full size.

44. Conversely, hedges are conventionally planted with spacings of about 1/8 of a tree’s potential canopy spread. When the respondents’ Lilly Pilly trees were planted and for many years afterwards, they would not have appeared to be a hedge nor performed roles one may expect of a hedge.

45. Planting the two Lilly Pilly trees relatively distant from each other begs various questions. If the planting was intended as a hedge, what was the hedge’s purpose? If, as postulated by the applicant, the hedge was intended to provide privacy and screen the applicant’s dwelling, why plant so few trees, and, why plant them so far apart?

46. At [39]-[40] of Johnson, his Honour said;

“[39] Accordingly, the Johnsons' submission, that the only question to be asked under s 14A(1)(a) is whether the trees are sufficiently close and tall enough at the time of determining the application under s 14B, involves asking the wrong question. It inquires of the present only and ignores the past. As I have said, s 14A(1)(a) requires examination of both the past and present to determine whether the trees are planted so as to form a hedge.

[40] Secondly, regardless of the time of inquiry, the two criteria proposed by the Johnsons' submission, namely being sufficiently close and tall enough, are not criteria or not the only criteria relevant to determining whether trees are planted so as to form a hedge under s 14A(1)(a). The criterion of being tall enough is a requirement of para (b) of s 14A(1) (the trees must rise to a height of at least 2.5m above existing ground level), but it is not a criterion under para (a) in order for the trees to form a hedge. The criterion of being sufficiently close is, however, relevant to determining whether the trees are planted so as to form a hedge. What is sufficiently close will depend upon the species of tree planted, the age of the tree, the health and growth of the tree, and the scale of the landscape.” (Emphasis added.)

47. Therefore, the mere fact that the canopy of trees may meld together and perform roles associated with a hedge, does not, of itself, satisfy the requirements of s 14A(1)(a) of the Trees Act. The Court similarly found melded trees were not hedges due to insufficient proximity at planting in Hickey v Inman [2022] NSWLEC 1491, where the trees were the same species, and in Wein v Reeves [2022] NSWLEC 1019 (Wein). In each case there were only two trees under consideration, as with the Lilly Pillies here. As noted in Wein; at [15]:

“Hedges may be comprised of two trees, but when representations are made that only two trees comprise a hedge, there is a distinct onus on the applicant to prove that the relationship between the trees satisfies the requirements of the Trees Act. Typically, this would involve trees of similar species and form, planted at the same time, relatively close together.”

48. Though T3 and T5 belonged to the family Myrtaceae*,* they were different species with various distinct dissimilarities. The Lilly Pilly species and cultivars commonly used as hedges are usually more compact and smaller, whereas both T3 and T5 are medium sized trees more commonly used as specimens or street and park trees. I concurred with the report at 3.2.2, which said “[t]he other trees within the respondents’ rear yard are a variety of different tree species, randomly spaced and distributed”.

49. Further, I am not convinced by the applicant’s submission that the planting of a Murraya and bamboo hedge by the respondents, near the existing Lilly Pillies and other trees, strengthened Mr Waugh’s claim that the Lilly Pillies are members of a hedge, notwithstanding that such planting likely enhanced the respondents’ privacy. As his Honour stated in Johnson; at [43]:

“Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (at [28] and [30]). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act*. It cannot later acquire the status of being planted* so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.” (Emphasis added.)

50. I was not persuaded that Mr Waugh’s case was advanced by the respondents’ SMS about the importance of the trees for privacy. While the trees’ contribution to privacy may be considered in the determination of whether trees form hedges, it is of little relevance in this context, especially relative to the factors discussed at [42]-[48], above. Unsurprisingly, privacy is the benefit of trees that respondents most commonly prioritise.

51. Despite the fact that the canopies of the Lilly Pilly trees had melded to contribute to a privacy screen and the Murraya and bamboo hedge was likely planted to enhance the respondents’ privacy, this does not render the Lilly Pilly trees members of a hedge for the purpose of the Trees Act. As noted in Johnson; at [43]: The Lilly Pilly trees “… cannot later acquire the status of being planted so as to form a hedge by the (Murraya trees and bamboo) being planted to form a hedge in proximity to the” Lilly Pilly trees.

52. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said, “something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage”. Therefore, more than a theoretical possibility is required to convince the Court that the trees were planted “so as to form a hedge”.

53. The Lilly Pillies were two medium size healthy trees that possibly were planted at the same time and possibly were planted along with other mature trees growing near the rear and western boundaries of the yard. However, I discerned no regular, organised pattern or design between the trees, other than the common practice of planting around the edge of a property to optimise utility space such as lawn in the middle of a yard. The group of trees may be described as a copse, but I am not satisfied the Lilly Pilly trees form a hedge for the purpose of the Trees Act.

54. Therefore, based on the submissions, the report, and the visual evidence on site, I have not been persuaded by Mr Waugh that on the balance of probability, the two Lilly Pilly trees were planted “so as to form a hedge”. I am satisfied it is more likely that they were not planted as a hedge but as specimen amenity trees. Though the distinction between a hedge and a specimen amenity tree may seem pedantic, it is a critical factor in determining whether the Court has power to make orders as there is no remedy under the Trees Act for obstruction of sunlight by amenity trees.

55. Mr Waugh sought to remedy alleged severe obstruction of sunlight to a window of a dwelling by trees to which this Part applies which were situated on adjoining land. Therefore, Section 14B of the Trees Act is satisfied.

56. The applicant has satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land, and provided evidence confirming lodgement of the application documents with Council.

57. Section 14D of the Trees Act details the Court’s jurisdiction to make a broad range of orders.

58. Section 14E(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152*;* at [195], Preston CJ stated that the language at s 10(1)(a) “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”. The requirement as at s 14E(1)(a) of Pt 2A is the same as at s 10(1)(a) of Pt 2 of the Trees Act.

59. In Form G, Mr Waugh mis-identified some trees but they were correctly identified in the report. However, Mr Waugh’s identification of the Murraya trees as Lilly Pillies may have caused confusion in discussions with Council about requirements for permission for pruning. Advice the applicant received about pruning closely planted Murraya trees would almost certainly have been different to advice about long established Lilly Pillies. Therefore, it was likely that animosity and suspicion between the parties may, at least in part, be attributed to this confusion.

60. Nonetheless, Mr Waugh noted discussions held between the parties and included copies of negotiations conducted by text message. He claimed to have proposed mediation with the respondents, which was rejected, and advised that his only alternative remedy was an application to the Court.

61. Consequently, I am satisfied that the applicant has met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that s 14E(1)(a) of the Trees Act is engaged. Mr Waugh also satisfied s 14E(1)(b) by service of application documents on the respondents and Council, as required at s 14C of the Trees Act.

Sunlight obstruction

62. The next step is to assess the severity of the obstruction of sunlight to the applicant’s windows as a consequence of any or all of the trees in the hedge.

Is the sunlight obstruction severe?

63. Based on my inspection of the respondents’ trees from W1-W4 and photographs in Appendix 3 of Form G, I am satisfied that the hedge comprising the Murraya trees (T1 and T4) and the bamboo (T2) had been severely obstructing sunlight to windows, W2 – W4, as an ongoing state. However, recent pruning of the hedge from about 8m to 5m tall had reduced the sunlight obstruction to less than severe.

64. Nonetheless, I was persuaded by the applicant’s argument that in the absence of intervention with the trees, the rapid growth rate of the hedge is likely to cause the obstruction of sunlight to rapidly recur and deprive the applicant and his family of reasonable amenity. As these discrete circumstances are similar to those in Steber v Job [2019] NSWLEC 1308 (Steber)**, it is reasonable and consistent to apply the rationale established by Acting Commissioner Galwey in Steber, at [26]-[45], whereby the sunlight obstruction is considered to be an ongoing state. Consequently, s 14E(2)(a)(i) of the Trees Act is engaged.

65. While I accept that Mr Waugh’s solar panel data objectively showed that energy output from panels close to the hedge was far less than from distant panels, I am satisfied this was primarily caused by the Lilly Pillies and the other long established trees. Similarly, Lilly Pilly (T5) was the primary cause of significant sunlight obstruction of W1. Incidentally, there is no remedy under the Trees Act for trees shadowing solar panels.

66. With s 14E(2)(a) satisfied due to severe obstruction of sunlight to a window of a dwelling, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:

14E Matters of which Court must be satisfied before making an order

…

(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.

67. In order to determine the balance inherent in this subsection, consideration of relevant matters at s 14F is required, as follows:

Relevant matters at s 14F

68. Section 14F(a) considers the location of the respondents’ trees, which are spread along the common boundary close to the applicant’s dwelling.

69. Section 14F(c) considers whether the trees grew to a height of 2.5 metres or more during the period that the applicant has owned (or occupied) the relevant land. In Appendix 2 on page 21 of Form G, Mr Waugh submitted that the growth rate of “certain bamboo species” was 0.91m/day (Wikipedia) and that “[l]arge Lilly Pilly trees can grow 2m/year (Silverstone gardening). Conversely, at 3.2.3, the report noted that “[r]eview of relevant historical aerial photos and photographic evidence from a previous visit to this property in 2021 reveal that the trees in the rear of the respondents property were of a similar height to the heights that they are now and already overshadowed the property of the applicant at the time they purchased the property in November 2023”.

70. Notwithstanding Mr Waugh’s likely confusion between the growth rate of the Murraya and Lilly Pilly trees arising from his identification of the Murraya trees as Lilly Pillies, I am not persuaded that the height of the Lilly Pilly trees had increased significantly since the applicant’s occupation in November 2023 or even since 2022, as claimed by the applicant.

71. After heavy pruning, trees generally recover height quite rapidly with vertical epicormic growth, as would similarly occur after fire or major storm damage. Even when pruned to near ground level, new culms (stems) of the established bamboo can readily grow to 8m tall over a few weeks, though they may not fully foliate until the following growing season.

72. However, ‘normal’ extension growth of mature woody dicotyledon trees is generally far slower. The report noted the Lilly Pillies as 8.4 and 8.3m tall, well above the applicant’s gutter height. In a photograph at Figure 8 of Form G, taken from the applicant’s roof, the canopy of T5 appeared to extend about 4m above the gutter level and T3 appeared about 2.5m above the gutter. The Paperbark trees looked to be about 4m taller still. This was consistent with the trees’ appearance when viewed from W1-W3.

73. As the mature Lilly Pilly trees had not been previously pruned, they displayed ‘normal’ extension growth rather than epicormic, which was likely to have a growth rate far slower than the 2m/year noted by Mr Waugh at Appendix 2 of Form G. The extension growth on Lilly Pilly branches since budburst in spring 2025, visible through W1-W3, appeared to average around 0.25m. This may be expected to increase to about 0.5m by the end of the growing season in autumn 2026. Therefore, as claimed in the report, it is reasonable to infer that most of the Lilly Pilly foliage above the gutters had existed prior to November 2023. The relatively thick stems and hierarchical branch structure of T5’s upper canopy reinforced my conclusion.

74. The Interpretation Act 1987 (NSW) permits me to refer to relevant material to assist in interpreting the Trees Act and the 2009, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Review) satisfies this role. On page 35 of the Review, Part 4 notes that Pt 2A of the Trees Act applies to “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 which had not existed at the time of purchase.” (Emphasis added.)

75. While in Thomson, Galwey AC found that sunlight access was available in 2015 and Ms Thompson, herself, had lost access to sunlight in the interim, I am satisfied the Lilly Pillies and other adjacent established trees would have already been obstructing the applicant’s sunlight to nominated windows, particularly W1-W2, during winter of 2024, following Mr Waugh’s occupation in November 2023.

76. Consequently, even if the Lilly Pillies were found to be a hedge that satisfied s 14A(1) of the Trees Act, potential orders for pruning of the Lilly Pillies would have been restricted to an estimate of the marginal growth that had occurred since the applicant’s occupation in November 2023.

77. The trees have no known historical, cultural, social, or scientific value but nonetheless make a moderate contribution to the local ecosystem and biodiversity (ss 14F(f) and (g)).

78. The hedge softens the landscape between the built form of the properties, and conceals the tall side wall of the applicant’s dwelling. As noted in the report, the trees provide public amenity as they are conspicuous from the street (ss 14F(h) and (i)).

79. Section 14F(k) considers the impact any pruning (including the maintenance of the trees at a certain height, width or shape) would have on the trees. Both the Murraya trees and bamboo are hardy and generally tolerant of repeated pruning, However, as live foliage produces carbohydrates for all essential tree functions, any pruning reduces photosynthetic potential and storage reserves and causes stress. Ideally, the extent of pruning should be minimised and the smaller and younger the stems that are pruned, the greater the likelihood of persistent regrowth.

80. Consequently, I refute Mr Waugh’s contention that reducing the height of the Lilly Pilly trees to gutter level would not compromise the trees, because it would require excessive foliage removal and likely result in epicormic regrowth, and possible wind damage and sunburn of branches. Nonetheless, a significant improvement in sunlight access to W1-W2 could be achieved through minor selective pruning of the upper canopy and overhanging branches of Lilly Pilly (T5) which could be undertaken with minimal negative impact on tree health or the respondents’ visual amenity. There is, however, no remedy under the Trees Act for branches encroaching beyond boundaries unless they are causing damage or risk of injury.

81. As the Court has no power to make orders for the Lilly Pilly trees, as they are not members of a hedge, this pruning would require negotiation between the parties. In such circumstances, it is not unusual for the pruning to be organised and directed by the respondents, but at the applicant’s expense, given that the applicant is the only beneficiary of the works.

82. The hedge makes a significant contribution to the respondents’ privacy in the backyard, and around the pool and the dwelling. It also provides protection from sun and wind (s 14F(l)).

83. While the respondents’ trees were the primary cause of the applicant’s sunlight obstruction, I concur with the report that established trees in neighbouring properties, such as a dense Illawarra Flame tree northwest of the applicant’s dwelling and a tall Metasequoia or Taxodium to the northeast, also contributed to sunlight obstruction. While Metasequoia and Taxodium trees are deciduous, they usually retain their foliage through autumn and often do not fully defoliate in Sydney until towards mid-winter (s 14F(m)).

84. As the trees were north of the applicant’s windows, the primary impact of sunlight obstruction was in winter when the sun’s arc is low in the northern sky and daylight hours are at a minimum (s 14F(o)).

85. Section 14F(s) provides for ‘such other matters as the Court considers relevant in the circumstances of the case’. As to the mouldy cap that Mr Waugh included to illustrate an unhealthy environment due to obstruction of sunlight, in Hendry v Olsson [2010] NSWLEC 1302; at [11]-[14], an expectation of grounds maintenance established in the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 at [20], was extended to include the cleaning of mould and slime.

Conclusion

86. I am satisfied that two rows of six closely planted Murraya trees (T1 and T4) and a clump of bamboo (T2) growing along the respondents’ southern boundary, formed a hedge for the purpose of the Trees Act. However, two Lilly Pilly trees (T3 and T5) failed to satisfy s 14A(1)(a), thus the Lilly Pillies are not members of a hedge, and the Court has no power to make orders for intervention with the Lilly Pilly trees.

87. Considering the rationale established in Steber, the Murraya trees and bamboo were found to have severely obstructed sunlight to the applicant’s windows, and, in the absence of intervention, such obstruction is likely to rapidly recur. As the Murraya trees and bamboo were found to tolerate regular pruning, and such pruning would not overtly compromise the respondents’ highly valued privacy and visual amenity, s 14E(2)(b) of the Trees Act is engaged. Thus, 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.

88. Consequently, orders not dissimilar to the respondents’ proposed alternative orders will be made for pruning the Murraya trees annually and the bamboo twice each year, to account for the bamboo’s especially rapid growth rate. There is also scope for negotiations between the parties regarding selective, targeted pruning of the Lilly Pilly trees, particularly T5, that is restricted to relatively small, young stems and does not exceed 10% of the tree’s foliage. Such pruning would likely significantly increase sunlight penetration to the applicant’s windows, particularly W1-W2.

89. The report was well substantiated and assisted the Court. Thus, I was not persuaded by Mr Waugh’s allegation that the report overemphasised questionable benefits of the trees and contained elements that were biased.

Orders

90. The orders of the Court are:

91. During April of 2026 and during April of every year thereafter, the respondents, or Australian Qualification Framework (AQF) level 3 qualified arborists with appropriate insurances (the arborists) engaged and paid by the respondents, shall prune the Murraya and bamboo hedge adjacent to the respondents’ southern boundary to a height no greater than five metres.

92. During December of 2026 and during December of every year thereafter, the respondents or the arborists engaged and paid by the respondents, shall prune the bamboo adjacent to the respondents’ southern boundary to a height no greater than five metres.

93. The applicant shall provide all reasonable access to the respondents or the arborists who satisfy the requirements of order (1), to undertake pruning or remove pruning debris, upon receipt of at least 72 hours’ notice from the respondents by email.

94. The pruning works shall be undertaken during reasonable daytime working hours and comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

J Douglas

Acting Commissioner of the Court

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