Zhang v The Owners – Strata Plan No 7600

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedges — obstruction of sunlight and views — whether the obstruction is severe

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 14A, 14B, 14D, 14E, 14F

Cases Cited: Haindl v Daisch [2011] NSWLEC 1145
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited: Australian Standard 4373:2007 ‘Pruning of amenity trees’
Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’

Category: Principal judgment

Parties: Nini Zhang (First Applicant)
Nalin Wang (Second Applicant)
The Owners – Strata Plan No 7600 (Respondent)

Representation: Counsel:
B Woolf (Solicitor) (First and Second Applicants)
No Appearance (Respondent)
Solicitors:
Woolf Associates Solicitors (First and Second Applicants)

File Number(s): 2025/157580

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** With the goal of restoring views they say they have lost, Nina Zhang and Nalin Wang have applied to the Court seeking the following orders relating to trees on the neighbouring property belonging to The Owners – Strata Plan No 7600:

2. Pruning of three banksias and five brown pines to a level not above the sightline between a standing position on their upper level outdoor terrace and the ridgeline of the respondents’ dwelling;

3. Selective pruning of a jacaranda;

4. Annual pruning to maintain the view, in accordance with the pruning described above.

5. The hearing took place onsite in Cremorne, allowing me to observe the trees and the view from the applicants’ property. The respondent did not appear, so the hearing proceeded ex parte. I am comfortable that the respondent was served a copy of the application, and that my observations from the applicants’ property were sufficient to make this decision. Mr Woolf represented the applicants. Elke Haege Thorvaldson, a consulting arborist, prepared a report for the applicants and gave evidence during the hearing.

Framework for this decision

3. The application is made pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The trees are on land adjoining the applicants’ land. The orders they seek are orders the Court can make at s 14D of the Trees Act. Therefore, relevant issues to be determined in these proceedings are:

4. Whether the trees are ones to which Pt 2A of the Trees Act applies: s 14A(1) of the Trees Act.

5. Whether the applicants have made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 14E(1).

6. Whether the Court can be satisfied that the trees are severely obstructing views from the applicants’ dwelling: s 14E(2)(a).

7. Whether the Court can be satisfied that the applicants’ interests outweigh reasons for not interfering with the trees: s 14E(2)(b).

8. If orders are to be made, how consideration of the relevant matters at s 14F of the Trees Act should influence those orders.

Whether Pt 2A of the Trees Act applies to the trees

4. The applicants wish to consider all 10 trees in their application as a single hedge: a tree fern, a jacaranda, three banksias and five brown pines. I do not accept that the trees form a single hedge. I find that the tree fern and the jacaranda are not part of a hedge, while the banksias and brown pines form two separate hedges. To reach this conclusion, I have considered various criteria of these trees, including their morphology, their proximity to each other, and their potential response to pruning. Preston CJ gave examples of criteria that might be considered when determining whether trees are planted so as to form a hedge at [41] of Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192. I also consider the words of Moore SC and Hewett AC at [45] of Wisdom v Payn [2011] NSWLEC 1012:

“…We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge.”

5. A single tree fern (Cyathea sp.) (T9) is not planted so as to form a hedge. The applicants seek no orders for the tree fern.

6. The jacaranda (Jacaranda mimosifolia) (T8) is the only tree of this species planted in the respondent’s garden. It likely predates the brown pines. It was unlikely to be planted with the intention of forming a hedge. It is not a species that would be readily maintained as a hedge, nor does its form give the impression of a hedge. It is unlikely that anyone other than the applicants would perceive the jacaranda as a tree that is ‘planted so as to form a hedge’: s 14A(1) of the Trees Act. I find that the jacaranda is not planted so as to form a hedge, so Pt 2A of the Act does not apply to this tree.

7. Three coastal banksias (Banksia integrifolia) (T5–T7) are planted in a group; not in a straight row, but close enough to each other that they form almost a continuous canopy. The banksias’ appearance is not exactly hedge-like, but they appear to have been planted to provide some privacy screening between the two properties. Taking the applicant’s case at its highest, I accept that the banksias are planted so as to form a hedge. They are more than 2.5 metres tall. Part 2A of the Trees Act applies to these three trees.

8. Five brown pines (Podocarpus elatus) (T12–T15), like the banksias, are not planted in a single straight line but are planted closely enough to form a continuous canopy. This species is frequently planted for hedging. These trees appear to have been planted to provide some privacy screening between the two properties. They form a separate hedge to the hedge formed by the three banksias. The brown pines are approximately 9 metres tall. Part 2A of the Trees Act applies to the five brown pines.

Reasonable effort to reach agreement

9. Letters show that the applicants have brought their concerns to the respondent’s attention in an effort to get the trees pruned. In response, the respondent was clear that they would not prune the trees. Further efforts were unlikely to result in an agreed outcome. I am satisfied that the applicants have made a reasonable effort to reach agreement with the respondent and that the timeframe set down by the Court has allowed for the required notice of the application.

Whether the trees are severely obstructing a view

The view

10. The applicants claim that the trees obstruct the view from the upper level of their dwelling only, where their living and dining rooms are located. They do not claim a view loss from their lower level.

11. Large glass doors and windows to their living and dining rooms give the applicants views to the north and west. To the north and northwest, they have water views of Willoughby Creek, with moored boats, across to Folly Point and the more distant landscape of Northbridge. To the west is Primrose Park, with sports fields. Trees on the respondent’s land obstruct, to varying degrees, the view to the north and northwest. The view is available above the ridgeline of the respondent’s dwelling, which is significantly downslope from the applicants’ land.

The banksias

12. The banksias are tall enough to impact the outlook over the respondents’ dwelling, but to a relatively minor degree. Compared with the brown pines, the banksias have relatively sparse foliage so that they do not form a continuous dense screen. Rather, their more open canopy allows views through to the distant landscape. As they grow even taller, this growth habit is likely to continue so that their impact on views is unlikely to change significantly. Ms Thorvaldson pointed out that, if the banksias were pruned to reduce their height, they would respond by growing more foliage low down, providing a more effective visual screen between the two dwellings. I accept this is so, but this would be a matter for the respondent. The Court can only make orders if it is satisfied that the trees are severely obstructing a view. As I found earlier, the banksias and the brown pines form two separate hedges, so the banksias must severely obstruct a view when considered separately from the brown pines if orders are to be made to interfere with them – they cannot rely on a view obstruction that the brown pines might cause. Using the qualitative terms of the view-sharing principle at [28] in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 (Tenacity), I find the banksias’ obstruction of the view is minor, not severe.

The brown pines

13. The five brown pines are approximately 9 metres tall, planted closely enough to give the impression of a single canopy. Compared to the banksias, their crown form is denser, so that together they form a visual screen. This screen is already obstructing valuable elements of the view: water, boats and distant landscape. The visual screen, and its obstruction of that part of the view, will become more acute as the trees grow. Mr Woolf acknowledged that a large part of the view to the west remains unaffected by the trees, but that part of the view includes curated sports fields and an artificial interface between land and water, whereas the view to the north is the more valued part of the view, with an expanse of water, boats, and a more natural foreshore. Mr Woolf submitted that this is not an attempt to slice up the view, as identified at [26] in Haindl v Daisch [2011] NSWLEC 1145, to find that a segment might be severely obstructed. Rather, it is an acknowledgement that some elements of a view are valued more highly than others, as identified in the first step of Tenacity*’s* view-sharing principle at [26], and the obstruction of these elements makes the impact to the overall view severe. I accept this is the case here. The brown pines severely obstruct the overall view from the applicants’ dwelling.

Consideration of relevant matters

14. I have considered the matters at s 14F of the Trees Act. The trees were present before the current dwelling on the applicants’ land was constructed. Nevertheless, the banksias and brown pines have grown to obstruct the view during the applicants’ time here.

15. The Trees Act does not create a right to a view. Garden plants and the natural environment change over time. The growth of plants usually contributes positively to amenity at the same time that it might affect access to views and sunlight.

16. The brown pines form a visual screen that will become denser over time, obstructing more and more of the applicants’ most valued view elements. The privacy the trees provide would not be lost if the trees are maintained at a height to restore some of the applicants’ view. Maintaining them at a height of 6 m should achieve this.

17. As a result of s 6(3) of the Trees Act, the respondents will not be required to gain consent from North Sydney Council to carry out the works ordered below.

Orders

18. The Court orders:

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

20. Within 45 days of the date of these orders, and then in March every year from March 2026, the respondent is to engage a suitably insured and qualified (minimum AQF level 3) arborist to prune the five brown pines (T12–T16 in the application – see Annexure A) to a height no greater than 6 metres above ground level, measured from the base of each tree.

21. The works in Order (2) are to be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

22. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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(Annexure A) (169 KB, pdf)