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[2026] NSWLEC 1342
General information, not legal advice.
Land and Environment Court (NSW)
2026-06-10
Galwey 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: Winterthur Pty Ltd v Spring [2026] NSWLEC 1342
Hearing dates: 16 April 2026
Date of orders: 10 June 2026
Decision date: 10 June 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 bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to remove the bamboo’s rhizomes and culms at ground level on their property within 300 mm of the wall and fence on the common boundary.
(3) Within 30 days of the date of these orders, the parties are each to obtain and swap two quotes to make good the dividing paling fence near the bamboo.
(4) Under a standard fencing contract with the costs shared equally by each party, the parties are to engage the contractor with the cheapest quote in Order (3), unless they agree on another, to complete the quoted fencing works within 90 days of the date of these orders.
(5) The parties are to provide property access for the works in Order (4) during reasonable hours of the day.
(6) For as long as the bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to remove a 2-metre wide section of bamboo outside windows W3 (Unit 1) and W10 (Unit 5) and outside and centred on W17 and W18 (Unit 9) on the applicant's property (as marked in blue on the plan in Annexure A), including the bamboo’s roots, rhizomes and culms.
(7) For as long as the bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to prune, or engage and pay for a suitably experienced and insured horticultural contractor to prune, the remaining bamboo growing along the common boundary to the height of the mid-point of window W10 (Unit 5) as marked by the blue horizontal line on the plan in Annexure A.
(8) The exhibits are returned, other than Exhibit A.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — damage to dividing fence caused by neighbouring bamboo — orders to remedy and prevent damage — Pt 2A application — neighbouring bamboo hedge — obstruction of sunlight — whether the obstruction is severe — privacy and amenity — balancing of interests — orders for removal of a section of bamboo and ongoing maintenance of the remaining bamboo
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 3, 7, 8, 9, 10, 12, 14A, 14B, 14C, 14D, 14E, 14F
Sydney Local Environmental Plan 2012, cl 5.10
Cases Cited: Curtis v Pranatajaya [2025] NSWLEC 33
Drewett v Best [2010] NSWLEC 1305
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Category: Principal judgment
Parties: Winterthur Pty Ltd (Applicant)
Andrew Joseph Spring (First Respondent)
Ursula Jay Sullivan (Second Respondent)
Representation: Counsel:
J Doyle (Applicant)
D Williams (Solicitor) (First and Second Respondents)
Solicitors:
Connor & Co Lawyers (Applicant)
Whitehead Cooper Williams Solicitors (First and Second Respondents)
File Number(s): 2025/451398
Publication restriction: Nil
COMMISSIONER: In or around 2008, Andrew Spring and Ursula Sullivan (Spring and Sullivan) planted bamboo along a side boundary of their property at 17 Leichhardt Street, Glebe (No 17). The bamboo provides a visual screen between No 17 and the neighbouring apartment building at 13–15 Leichhardt St (No 13–15), which has been owned by Winterthur Pty Ltd (Winterthur) since about 1975. Winterthur has applied to the Court pursuant to both s 7 (Pt 2 application) and s 14B (Pt 2A application) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act).
During the period beginning when Winterthur filed its original application through to final submissions, the orders sought by Winterthur changed. When I refer here to orders that Winterthur seeks, it is the final version of those orders. Winterthur’s Pt 2 application seeks to remedy damage caused by the bamboo to the dividing fence, and to prevent it causing further damage, via orders for Spring and Sullivan to remove the bamboo’s rhizomes within 300 mm of the dividing fence and to prevent bamboo regrowing within 300 mm of the fence; and that the parties share equally the costs of repairing the damaged dividing fence. The Pt 2A application seeks to remedy and prevent an obstruction of sunlight caused by the bamboo, via orders for Spring and Sullivan to remove a 2-metre section of bamboo; and for Spring and Sullivan to prune and maintain the remaining bamboo at the height of the middle of the third-floor windows at No 13–15). Winterthur also seeks the costs of these proceedings.
The final hearing took place onsite, allowing me to observe the bamboo, the dividing fence, the affected windows at No 13–15, issues of privacy, and other elements of the two properties. The Court has Winterthur’s application and claim details forms (Exhibit A) along with various affidavits, reports and documents:
Affidavit of Ernest Craig Miller, 16 January 2026 and ‘Exhibit ECM-1’
Affidavit of Michael Sharkey, 21 January 2026 and ‘Exhibit MS-1’
Affidavit of Anna Gamlin, 20 January 2026
Affidavit of Vanessa Chamas, 30 January 2026
Report of Catriona Mackenzie, 8 March 2026
Report of Catriona Mackenzie, 13 April 2026
Applicant’s tender bundle
Applicant’s proposed Short Minutes of Order and Pruning Plan
Statement of Spring and Sullivan, 25 March 2026
Report of Alexander Wilson, 24 March 2026
Report of Nicholas Hosking, 31 March 2026
Statement of Chris Hosking, 31 March 2026
Respondents’ tender bundle
Ernest Craig Miller is a director of Winterthur. Mr Miller swore an affidavit on 16 January 2026 (Exhibit B), which sets out some history of the dispute and is accompanied by various documents. Mr Miller’s presence was requested for cross-examination. It was only at the onsite hearing that I recognised Mr Miller as a past Acting Commissioner of the Court. That was many years ago and, as we worked in different jurisdictions at the time, we bumped into each other only occasionally during that time. Although I saw no issue, I informed the parties of this and they did not raise any objection.
Catriona Mackenzie, a consulting arborist who wrote two reports (Exhibits F and G), was also cross-examined. Her evidence is important because it changed the nature of the orders that Winterthur seeks.
When the parties were unable to complete their submissions within the time set down for the hearing, Mr Doyle and Mr Williams agreed to provide written submissions to the Court rather than returning in person.
Pursuant to s 7 of the Trees Act, Winterthur originally applied for orders for compensation for damage to the dividing fence and for costs to repair the fence. Winterthur clarified during the hearing that it does not seek compensation. In its ‘Short Minutes of Order’ filed later, Winterthur seeks the following orders under Pt 2 of the Trees Act:
Within 30 days the Respondents are to completely remove rhizomes at ground level for at least 300mm distance from the back of the wall on the Respondent's side (with the aim of ensuring that the bamboo does not regrow in that location and so preventing further damage to and growth through the dividing fence).
The parties are to jointly and equally share the costs of repairing the damage to the boundary fence, which works are to be carried out within 120 days.
“The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.”
In applications based on damage to property, the Court must not make an order under Pt 2 of the Trees Act unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property: s 10(2)(a) of the Trees Act.
The bamboo grows in two narrow beds on No 17 along the common boundary. The dividing fence comprises a timber paling fence atop a brick retaining wall. Ms Mackenzie wrote at par 20 of her report of 8 March 2026 (Exhibit F):
“Rhizomes and culms were observed growing over the top of the common boundary retaining wall and pushing out the palings of the common boundary timber fence above it.”
“The impact to the fence is mainly from damp issued [sic] but we can easily address where the Bamboo is pushing against [sic] and maintain it going forward. In fact we have already started now that it has been pointed out, and commenced remove the Bamboo [sic] where it is going over the retaining wall, and will complete this shortly.”
Alexander Wilson, a carpenter, assessed and reported on the dividing fence (Exhibit 2). He concluded that the lower parts of fence palings were bowed outwards due to dampness where they were in contact with the brick retaining wall; bamboo culms had then grown against the warped palings. He did not fully explain his reasons for reaching this conclusion. I am persuaded more by my on-site observations than by Mr Wilson’s opinion.
I observed the fence palings pushed out by bamboo rhizomes and culms. Even if dampness has contributed to the damage, it is the bamboo that appears to be the primary cause. Pursuant to s 10(2) of the Trees Act, I am satisfied that the bamboo has damaged the dividing fence.
Before making orders under Pt 2 of the Trees Act, I am to consider matters at s 12. The bamboo is close to the boundary, grows against the dividing fence at and below ground level, and overhangs the common boundary.
The bamboo is within a heritage conservation area. Pursuant to cl 5.10 of the Sydney Local Environmental Plan 2012 (the LEP), development consent would ordinarily be required to demolish or alter a tree within a heritage conservation area.
The bamboo has no significant environmental value and contributes little to public amenity. Its main value is to the amenity and privacy of No 17. Removing bamboo within 300 mm of the dividing fence at ground level would have little impact on those benefits.
Where bamboo has damaged the dividing fence, Winterthur has not contributed to the damage through its own acts or omissions. The damage is a result of Spring and Sullivan failing to maintain the bamboo clear of the fence.
“The damage to the fence is caused by the rhizomes growing over the top of the wall and pushing against the timber palings. The simplest way to address this is to ensure no rhizomes breach or grow over the wall by the cutting and removing them for at least 300mm distance from the back of the wall on the Respondent’s side. A reciprocating saw, or similar, would address this.”
Ms Mackenzie’s recommendation would prevent the bamboo causing further damage in future. Winterthur seeks an order to remove bamboo rhizomes, and to prevent them regrowing, within 300 mm of the dividing fence.
Mr Wilson recommended removing any culms that grow over the top of the retaining wall in future. Spring and Sullivan submit that orders are not required because they can maintain the bamboo as needed.
Slender weavers bamboo grows vigorously. It may not be invasive, but the clumps of culms expand quickly at ground level. History shows that Spring and Sullivan have failed to maintain the bamboo in such a way as to prevent damage to the paling fence, despite their claim that it is straightforward to do so. The maintenance order that Winterthur seeks is appropriate for preventing the bamboo damaging the fence.
Winterthur also seeks an order for the parties to share equally the cost of repairing the fence. It seems to me that bamboo is the primary cause of displacement of fence palings, so Winterthur’s proposed order seems generous, but is one the Court can make.
In summary, orders will be made under Pt 2 in line with those that Winterthur seeks, although I will make the orders slightly differently to minimise potential conflict over the process for fencing works.
Pursuant to s 14A of the Trees Act, Pt 2A applies only to groups of 2 or more trees that are planted so as to form a hedge and rise to a height of at least 2.5 metres above existing ground level.
Spring and Sullivan planted the bamboo to form a hedge that would screen the neighbouring building and provide some privacy. The bamboo is approximately 10 metres tall. Therefore, Pt 2A of the Trees Act applies to the bamboo.
Pursuant to s 14B of the Trees Act, Winterthur originally applied for orders for Spring and Sullivan to remove the bamboo to prevent it obstructing sunlight to windows at No 13–15. Winterthur clarified in its later ‘Short Minutes of Order’ that it seeks the following orders under Pt 2A of the Trees Act:
Within 30 days the Respondents are to completely remove a 2 m wide section of bamboo outside (and centred on) the bedroom windows of unit 1 (upstairs) and unit 5 (downstairs), and the door and window to unit 9 on the Applicant's property (marked in blue on the attached plan), including the roots, rhizomes and culms, and to ensure that the bamboo does not regrow in that section. To avoid doubt, the relevant windows are those marked W3 (bedroom), W10 (bedroom), W17 (Kitchen) and W18 (front door) (as identified on the Plan).
Within 30 days the Respondents are to prune, at their cost, the remaining bamboo growing along the common boundary, to the height of the middle of the windows on the third floor of the Applicant's property being windows W9 to W13 as shown on the attached Plan dated 7 April 2026, and thereafter to this height every April and October.
The position and also the width of bamboo is not to exceed 7.5 m as identified as the new width of bamboo as shown on the Plan.
The Pt 2A orders that Winterthur seeks are orders the Court can make to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant’s land: s 14D of the Trees Act. The Court is not required to make the orders sought, but may make such orders as it thinks fit.
After seeking removal of the bamboo in its original application filed with the Court on 21 November 2025, Winterthur engaged Ms Mackenzie to assess the bamboo and prepare a report. Instructions to Ms Mackenzie included asking her to provide her opinion on whether or not the bamboo should be removed. After she considered the bamboo and its benefits, and relevant factors at both properties, Ms Mackenzie gave her opinion that the bamboo should not be removed and that the sunlight obstruction could be addressed through ongoing maintenance of the bamboo at a lesser height. Taking this advice on board, Winterthur changed the orders it seeks from removal of the bamboo to pruning and maintenance of the bamboo. During the on-site hearing, Mr Williams submitted that the Court cannot order pruning of the bamboo, as Winterthur’s original application, which has not been superseded by an amended application, sought only its removal. Mr Williams suggested that the Court could only order removal, or nothing. That is false. In many tree dispute applications seeking orders for tree removal, the Court has instead made orders for pruning trees. It can be no accident that s 14D of the Trees Act begins with (just as Pt 2’s s 9 does): “The Court may make such orders as it thinks fit to remedy, restrain or prevent…” The Court is not obliged to make the orders that an applicant sees fit, but may make order as it thinks fit, having considered the circumstances of the application within the framework of the Trees Act. Even if Winterthur had not changed its mind on the orders it seeks, the Court could order pruning of the bamboo rather than its removal.
“Attached to the Application are a series of 15 letters or emails between the Applicant’s former lawyer, Mr Woolf, and the Respondent’s lawyer – ending with the email of 20 February 2024 by the Respondent’s lawyer, referring to the long history of large trees on the Respondents’ property, the need to balance access to sunlight against a right to privacy, and the absence of any evidence of any objection to the bamboo from any resident in the building. That email was never answered or addressed between February 2024 and November 2025, when this Application was filed and then served without notice, warning, or any attempt by the Applicant to resolve matters peaceably with the Respondents. The Applicant gave no warning in 2025 of its intention to bring this Application before the Court.”
Mr Williams submits that a hiatus followed the last correspondence in February 2024, until Winterthur applied to the Court in 2025 without any further negotiations. Mr Williams submits that Winterthur has not made a reasonable effort to reach agreement. The correspondence of February 2025 followed pruning by Spring and Sullivan to reduce and thin out the bamboo.
In January 2024, Spring and Sullivan were surprised by Winterthur’s demand for removal of the bamboo. The email of 23 January 2024 from Winterthur’s then solicitor, Bruce Woolf, to Spring and Sullivan advised:
“If I do not receive any further proposal within 7 days from the date of this email, my client may commence proceedings without further notice for an order for removal of the bamboo.”
“I am really shocked that after 11 months with no response that this is what is being asked, and I only have 7 days to respond. I have always acted in the spirit of cooperation with your client and his agent Michael, and feel that this course of action is quite unfair, especially considering I reached out to you yesterday to suggest other options. I would have thought that all avenues would need to be exhausted before you go to the land and environment court.”
Spring and Sullivan asked for 14 days to respond, to which Winterthur agreed. On 2 February Mr Williams replied to Mr Woolf advising that Spring and Sullivan would continue pruning and maintaining the hedge as they consider fair and reasonable, and would not be acquiescing to Winterthur’s demands.
Mr Woolf replied to Mr Williams on 15 February 2024 advising that maintenance of the bamboo as proposed by Spring and Sullivan would not provide the relief sought by Winterthur, finishing with:
“Accordingly in view of the above matters and the view expressed in your letter my client will file an application in the Court. Please advise if you have instructions to accept service.”
In applications based on an obstruction of sunlight, the Court must not make an order under Pt 2A of the Trees Act unless it is satisfied that the trees are severely obstructing sunlight to a window of a dwelling situated on the applicant’s land: s 14E(2)(a)(i) of the Trees Act.
Winterthur engaged Pam Walls, a qualified builder of R. A. Walls Constructions, to prepare shadow diagrams and to analyse the impact of the bamboo on sunlight to windows at No 13–15. Ms Walls’ report is included with Winterthur’s application (Exhibit A). Based on the shadow diagrams, Ms Walls prepared two tables, one for the winter solstice and one for the equinox, showing the number of hours each window receives more than 50% of direct sunlight with the bamboo present, and the number of hours each window would receive more than 50% of direct sunlight without the bamboo. I copy those tables here, with formatting slightly adjusted, and bold highlighting added where the absence of bamboo would make a difference to the number of hours a window receives more than 50% direct sunlight.
| | Summary Winter Solstice | Hours Direct Sunlight Without boundary B****amboo Hedge | Hours Direct Sunlight With Bamboo Hedge | | | 4****th Floor (Upper Level) | | | | W1 | Unit 1 Kitchen Window | 4 Hours | 4 Hours | | W2 | Unit 1 Living Room Window | 4 Hours | 3 Hours | | W3 | Unit 1 Bedroom Window | 4 Hours | NIL | | W4 | Unit 2 Bathroom Window | 4 Hours | NIL | | W5 | Unit 2 Bedroom Window | 4 Hours | 4 Hours | | W6 | Unit 2 Living Room | 4 Hours | 4 Hours | | W7 | Unit 2 Kitchen Window | 6 Hours | 6 Hours | | | 3****rd Floor | | | | W8 | Unit 5 Kitchen Window | NIL | NIL | | W9 | Unit 5 Dining Room Window | 3 Hours | 2 Hours | | W10 | Unit 5 Living Room Window | 5 Hours | NIL | | W11 | Unit 5 Bathroom Window | 4 Hours | NIL | | W12 | Unit 5 Bedroom 1 Window | 4 Hours | 4 Hours | | W13 | Unit 5 Bedroom 2 Window | 4 Hours | 4 Hours | | W14 | Unit 5 Sunroom Window | 6 Hours | 6 Hours | | | 2****nd Floor | | | | W15 | Under Floor Storeroom | NIL | NIL | | W16 | Under Floor Storeroom | 2 Hours | NIL | | W17 | Unit 9 Kitchen Window | 3 Hours | NIL | | W18 | Unit 9 Kitchen Window/Door | 3 Hours | NIL | | W19 | Unit 9 Bathroom Window | NIL | NIL | | W20 | Unit 9 Bedroom Window | 1 Hour | 1 Hour | | W21 | Unit 10 Bedroom/Study/Living | 2 Hours | 2 Hours | | W22 | Unit 10 Kitchen Window | 6 Hours | 6 Hours | | | Ground Floor | | | | W23 | Under Floor Storeroom | NIL | NIL | | W24 | Unit 10 Bathroom | 6 Hours | 6 Hours |
| | Summary March Equinox | Hours Direct Sunlight Without boundary Bamboo Hedge | Hours Direct Sunlight With Bamboo Hedge | | | 4****th F****loor (Upper Level) | | | | W1 | Unit 1 Kitchen Window | 4 Hours | 4 Hours | | W2 | Unit 1 Living Room Window | 4 Hours | 4 Hours | | W3 | Unit 1 Bedroom Window | 4 Hours | NIL | | W4 | Unit 2 Bathroom Window | 4 Hours | NIL | | W5 | Unit 2 Bedroom Window | 4 Hours | 4 Hours | | W6 | Unit 2 Living Room | 4 Hours | 4 Hours | | W7 | Unit 2 Kitchen Window | 6 Hours | 6 Hours | | | 3****rd Floor | | | | W8 | Unit 5 Kitchen Window | NIL | NIL | | W9 | Unit 5 Dining Room Window | 2 Hours | 1 Hour | | W10 | Unit 5 Living Room Window | 5 Hours | NIL | | W11 | Unit 5 Bathroom Window | 5 Hours | NIL | | W12 | Unit 5 Bedroom 1 Window | 5 Hours | 5 Hours | | W13 | Unit 5 Bedroom 2 Window | 5 Hours | 5 Hours | | W14 | Unit 5 Sunroom Window | 6 Hours | 6 Hours | | | 2****nd Floor | | | | W15 | Under Floor Storeroom | NIL | NIL | | W16 | Under Floor Storeroom | 2 Hours | 2 Hours | | W17 | Unit 9 Kitchen Window | 4 Hours | NIL | | W18 | Unit 9 Kitchen Window/Door | 4 Hours | NIL | | W19 | Unit 9 Bathroom Window | 4 Hours | NIL | | W20 | Unit 9 Bedroom Window | 3 Hours | 3 Hours | | W21 | Unit 10 Bedroom/Study/Living | 2 Hours | 2 Hours | | W22 | Unit 10 Kitchen Window | 6 Hours | 6 Hours | | | Ground Floor | | | | W23 | Under Floor Storeroom | 1 Hour | 1 Hour | | W24 | Unit 10 Bathroom | 5 Hours | 5 Hours |
The windows face northeast, so they principally receive sunlight during the morning. Winterthur submits that the bamboo severely obstructs sunlight to windows W10 and W11 (Unit 5) and W17 and W18 (Unit 9).
A tenant of Unit 5 swore an affidavit (Exhibit D) in which she described the impact of the bamboo on that unit. She said the bamboo blocks sunlight to Bedroom 1 (W12) and the bathroom (W11) and is beginning to impact Bedroom 2 (W13).
A tenant of Unit 2, who formerly lived in Unit 1, swore an affidavit (Exhibit E) in which she described the impact of the bamboo on Unit 1. She said it made the bedroom (W3) considerably dark or dim and the living room (W2) somewhat dark or dim.
Spring and Sullivan submit that their efforts to reduce and thin the bamboo addressed any overshadowing of windows W5, W6, W12, W13, W20 and W21. They say that, at worst, eight windows are affected across four units: W2 and W3 (Unit 1), W4 (Unit 2), W10 and W11 (Unit 5), and W17–W19 (Unit 9).
Spring and Sullivan submit that Ms Walls’ analysis ignores the dappled light that passes through the bamboo. Ms Walls’ shadow diagrams and analysis show, in some instances, ‘100% shade’ on windows as a result of the bamboo. Mr Williams asked the Court to observe dappled light on the windows during the on-site hearing. He argued that the percentage of shade on windows impacted by the bamboo is less than Ms Walls showed.
In written submissions, Mr Williams suggests that Ms Mackenzie did not provide an opinion on whether the bamboo severely obstructs sunlight to windows, even though she was asked that question. Mr Williams opines that Ms Mackenzie’s failure to answer the question, along with her recommendation against removing the bamboo, implies that in her opinion the obstruction is not severe and does not warrant removal. In fact, Ms Mackenzie was not asked that question. Annexure B of her report (Exhibit F) includes her letter of instruction from Connor & Co Lawyers. “Whether the bamboo hedge severely obstructs sunlight to windows…” is one of five “issues in these proceedings” outlined in the letter. Separately, and following those issues, is the list of four questions that “We are instructed to request that you prepare an expert arborist report for the proceedings regarding your opinion on the following matters...” Whether the bamboo severely obstructs sunlight is not covered within the four questions. The four questions are included and answered by Ms Mackenzie in the body of her report. Ms Mackenzie did not imply any opinion on the severity of the sunlight obstruction.
Mr Williams makes a further written submission (par 23) that:
“The Applicant’s submission – made without any supporting expert evidence – that any of the rooms in any of these apartments had “severely” obstructed sunlight is simply untrue. It was patently obvious during the walk-through of the flats that a person with reasonable eyesight could read a newspaper in any of those rooms without needing to turn on a light – relying solely on the sunlight entering the room – except where the occupants had already fitted shutters to reduce sunlight entering that room.”
The nature of submissions is naturally adversarial, and the Court regularly takes into account the often-inexperienced approach of the self-represented litigant. However, it does not assist the Court when a legal representative for a party consistently makes submissions that are plainly false. In fact, contrary to Mr Williams’ submission, Winterthur’s submission that sunlight is severely obstructed to windows of some rooms is supported by Ms Walls’ expert evidence.
The ability to read a newspaper without turning on a light is not a test of sunlight obstruction. A room may be light enough for reading even with ambient daylight. The severe obstruction test relates to direct sunlight: see Drewett v Best [2010] NSWLEC 1305 at [17].
With the evidence before me, supported by my own observations during the on-site hearing, I find that the bamboo severely obstructs sunlight to several windows of dwellings at No 13–15: W10, W11, W17 and W18.
The Court was walked through Units 1, 2, 5 and 9 at around 9:30 am on 16 April 20206, a few weeks after the autumnal equinox. My observations, written as we went, support Ms Walls’ findings and Winterthur’s submissions:
At Unit 1, W3 (bedroom) was in shade from the bamboo, which allowed a small amount of dappled sunlight to land on the window. The bamboo’s obstruction of sunlight was moderate, but not far off severe.
At Unit 2, sunlight to W4 (bathroom) was moderately obstructed by the bamboo, but not far off being severely obstructed.
At Unit 5, sunlight to W10 and W11 (bathroom) was severely obstructed by the bamboo.
At Unit 9, the upper sections of W17 and W18 (both to the kitchen) received a small amount of dappled light through the bamboo while their lower sections were shaded by the dividing fence. The bamboo’s obstruction of sunlight available above the fence’s shadow was severe.
My observations align with Ms Walls’ findings. The small amount of dappled light that passed through the bamboo’s screen did little to mitigate the impact of the shadowing. As Ms Walls’ tables show, in the absence of the bamboo most of these windows would receive several hours of direct sunlight throughout the morning. Instead, they are almost entirely in shade and the rooms are darkened accordingly. I do not think Ms Wall’s use of ‘100% shade’ on windows is misleading.
I am satisfied that the bamboo severely obstructs sunlight to windows of dwellings at No 13–15: s 14E(2)(a)(i) of the Trees Act. Further to that test, at s 14E(2)(b) the Court must not make an order unless it is satisfied that “…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.” I will determine s 14E(2)(b) after considering matters at s 14F.
The Trees Act includes at s 14F a range of matters that the Court must consider before determining an application made under Pt 2A. Those matters that are relevant to this decision are considered here.
The bamboo is close to the boundary and grows against the dividing fence at and below ground level. Its tall culms overhang the common boundary; its foliage is close to the affected windows at No 13–15.
The bamboo is within a heritage conservation area. Pursuant to cl 5.10 of the LEP, development consent would ordinarily be required to demolish or alter a tree within a heritage conservation area.
The bamboo has no significant environmental value and contributes little to public amenity. It has no historical, cultural, social or scientific value, and makes no significant contribution to the local ecosystem and biodiversity. It is not part of the natural landscape of the locality.
Spring and Sullivan value the bamboo for the amenity and privacy it provides for No 17. Some external elements of the building at No 13–15, which is close to the common boundary, have not been well maintained. The bamboo screens what would otherwise be an aesthetically unappealing impression of the nearby built form from No 17. Windows at No 13–15 provide the potential for overlooking down to the courtyard and garden behind the dwelling at No 17 and into the rear of No 17’s dwelling.
Spring and Sullivan tendered a report by Nicholas Hosking, a landscape architect (Exhibit 3). Mr Hosking outlined the bamboo’s benefits for privacy and amenity. Mr Hosking lived for a period at 19 Leichhardt Street (No 19) and now lives at 2 Stewart Street, adjacent to No 19. He says this gives him knowledge of the site and its history and the need for privacy screening as windows at No 13–15 overlook both his current and former properties. Mr Hosking says that the bamboo is an appropriate choice of plant for the location and achieves its purpose: it forms a screen that allows dappled light to reach windows at No 13–15. Mr Hosking says pruning to the height proposed by Winterthur would be detrimental to the bamboo as new canes would never reach the height needed to produce any foliage. This is contrary to Ms Mackenzie’s evidence that the bamboo could be pruned at a height of 2 metres without adverse impacts (Exhibit G, par 14). I accept Mr Hosking’s opinion on the bamboo’s contribution to privacy and amenity, but I prefer Ms Mackenzie’s opinion to Mr Hosking’s on the impacts of Winterthur’s proposed pruning on the bamboo. I reduce the weight I give Mr Hosking’s report because, by his own statements, he feels he will lose privacy if the bamboo is pruned as proposed by Winterthur.
Winterthur proposes that the bamboo is pruned and maintained at a height no greater than the mid-point of window W10 (Unit 5). This would not lead to any greater overlooking to No 17 from windows on the third floor (Unit 5), but would increase potential for overlooking from windows on the fourth floor (Units 1 and 2). Because of the height of the fourth-floor windows, and their proximity to the common boundary, overlooking would only be possible while somebody is standing at or close to the window, and looking downward instead of out across the district view. The impact to No 17’s privacy would not be significant. Likewise, Winterthur’s proposed pruning would only remove the visual screen to the top of the building at No 13–15 when looking upward from ground level at No 17. Again, the impact to amenity would not be significant.
Winterthur’s proposed pruning height at the mid-point of window W10 is above the height Ms Mackenzie recommended (p 7 of Exhibit F), which aligns roughly with the bottom or sill of W10.
If the bamboo is to be pruned, annual pruning should suffice as new culms that grow above the pruned height during the intervening 12 months would be thin and should not form a dense screen. More frequent pruning would be onerous. Where annual pruning is sufficient, Ms Mackenzie recommended pruning in April.
When Spring and Sullivan purchased No 17 in 2009, large trees provided a canopy over their back garden. Historic aerial photographs (for instance, in Exhibit F) show the tree canopy was then as tall as, or taller than, the building at No 13–15. The trees included a privet hedge and a large hackberry, which Mr Hosking says (Exhibit 3) “…created a dark and very dense and impenetrable green hedge for decades.”
Spring and Sullivan submit that the current situation improves sunlight access for No 13–15’s windows compared with the earlier situation. Mr Hosking says the hackberry that once grew at No 17 was “briefly deciduous”. Ms Mackenzie says the hackberry “… would have allowed some light to reach the affected windows during the winter months.” Access to winter sunlight is usually more important than summer sunlight. Shade during summer might even be appreciated. A deciduous hackberry, even if taller than the building, would have allowed more winter sunlight to reach the affected windows at No 13–15 than the bamboo does. The bamboo forms a screen close to the affected windows, unlike the hackberry that grew here with its foliage spread throughout a broad crown. The outlook from the windows has changed dramatically, as has their access to winter sunlight. Spring and Sullivan expressed their view in an email to Winterthur on 10 June 2022 (in Exhibit B): “The Bamboo now covers far less of the property, is lower in height than the previous trees, no longer runs as far along the boundary, and does not encroach over the boundary as much as the previous trees.” While the statement might be true, it ignores the impact of the bamboo’s screen immediately outside the affected windows versus the effect of a taller overarching canopy. Photographs in Ms Walls’ report (in Exhibit A) show the proximity of the bamboo, such as the one from Unit 1 copied here.
The affected windows include living areas, bedrooms and bathrooms. In some units, bedrooms are also being used as home offices. Living areas are more likely than bedrooms to be used during daylight hours, and bathrooms are typically used for only short periods, so bedrooms and bathrooms are usually given less weight than living areas when evaluating the impacts of sunlight obstruction. The tables copied above from Ms Walls’ report show that the bamboo significantly reduces sunlight access to windows of living rooms or kitchens of Unit 5 (W10) and Unit 9 (W17 and W18). Although Unit 9 is described as being on the second floor, it is at ground level – the side path at No 13–15 is outside Unit 9’s door and the dividing fence obstructs sunlight to only the lower sections of its windows. Pruning the bamboo would provide a significant benefit to Unit 9, regardless of the fence’s shadow.
The units at No 13–15 are rented out to tenants. Spring and Sullivan submit that tenants have raised no complaints about the bamboo. They asked Michael Sharkey, the real estate agent who manages the property at No 13–15, to provide any written complaints received from tenants, but he was unable to do so. Mr Miller stated that he has received verbal complaints. Mr Williams submits that is “pure hearsay” (written submissions, par 8) and that it is only “Mr Miller Senior, the ‘corporate mind’ of the Applicant and an elderly man with clearly fixed views as to what he/his company is entitled to…” (written submissions, par 32) that wants the bamboo pruned or removed, not his tenants.
Nothing in the Trees Act requires tenants at No 13–15 to complain about the bamboo and its obstruction of sunlight. Winterthur is an ‘owner of land’ and has applied for orders: s 14B of the Trees Act. Winterthur made a reasonable effort to reach agreement with Spring and Sullivan: s 14E(1)(a). The bamboo severely obstructs sunlight to windows of dwellings on Winterthur’s land: s 14E(2)(a)(i). Two tenants described in their affidavits the bamboo’s negative impacts on their units. I do not consider the lack of any earlier written complaints to be relevant to this decision.
The Court orders:
The application is granted to the extent of the following orders.
For as long as the bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to remove the bamboo’s rhizomes and culms at ground level on their property within 300 mm of the wall and fence on the common boundary.
Within 30 days of the date of these orders, the parties are each to obtain and swap two quotes to make good the dividing paling fence near the bamboo.
Under a standard fencing contract with the costs shared equally by each party, the parties are to engage the contractor with the cheapest quote in Order (3), unless they agree on another, to complete the quoted fencing works within 90 days of the date of these orders.
The parties are to provide property access for the works in Order (4) during reasonable hours of the day.
For as long as the bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to remove a 2-metre wide section of bamboo outside windows W3 (Unit 1) and W10 (Unit 5) and outside and centred on W17 and W18 (Unit 9) on the applicant's property (as marked in blue on the plan in Annexure A), including the bamboo’s roots, rhizomes and culms.
For as long as the bamboo hedge remains, in July 2026 and then in April each year thereafter, the respondents are to prune, or engage and pay for a suitably experienced and insured horticultural contractor to prune, the remaining bamboo growing along the common boundary to the height of the mid-point of window W10 (Unit 5) as marked by the blue horizontal line on the plan in Annexure A.
The exhibits are returned, other than Exhibit A.
Annexure A (329 KB, pdf)
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Winterthur Pty Ltd
Spring