Background
The applicant owners corporation administers six townhouses in Roseville. A row of Leyland cypress trees planted along the respondents’ adjoining boundary provided privacy from the townhouses’ first-floor windows. The hedge had generally been maintained at about 4.5 metres, although it allegedly exceeded 5.5 metres after pruning ceased in 2025; the respondents reduced it to about 4 metres before the hearing.
The owners corporation applied under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking orders requiring the hedge to be pruned and annually maintained at approximately 3.1 metres. It also sought pruning of a nearby Camellia japonica. The applicant argued that the proposed height would materially improve sunlight to the townhouses’ ground-floor windows while preserving the respondents’ privacy. The respondents maintained that any improvement would be marginal because the townhouses’ design, the applicant’s own vegetation, and other structures caused much of the shading.
The Court’s Holding
The Court refused the application. It found that the Leyland cypresses formed a hedge exceeding 2.5 metres for the purposes of Part 2A, and that the owners corporation had satisfied the notice and reasonable-effort-to-agree requirements. The older Camellia japonica, however, was not planted so as to form part of that hedge and could not later acquire that status merely because the cypresses were planted nearby. Part 2A therefore provided no remedy for sunlight obstruction caused by the individual Camellia.
The statutory threshold for intervention was not met because the Court was not satisfied that the Leyland cypress hedge was severely obstructing sunlight to the townhouses’ windows. The site’s excavated and relatively low courtyard levels, the applicant’s own Camellia hedge, deep courtyard roofs and broad eaves, dividing brick walls and pillars, and surrounding buildings and vegetation were cumulatively the principal causes of lost sunlight. Although the cypress hedge exacerbated the obstruction, reducing it to 3.1 metres would produce only a marginal increase in sunlight to the relevant windows, making the hedge a secondary rather than severe cause.
Key Takeaways
- Part 2A does not create a general right to sunlight or views; orders require severe obstruction caused by a qualifying hedge.
- The Court assesses the hedge’s actual contribution separately from shading caused by the applicant’s building design, vegetation, and other surrounding features.
- An older individual tree does not become part of a statutory hedge merely because hedge trees are later planted near it.
Why It Matters
The decision illustrates the demanding causation and severity thresholds governing high-hedge disputes under the NSW Trees Act. Evidence that a lower hedge would improve solar access is not enough if the improvement is marginal and other site features remain the predominant causes of obstruction.
Applicants should therefore assess each affected dwelling and isolate the qualifying hedge’s contribution to lost light. Expert shadow diagrams must account for existing roofs, walls, ground levels, vegetation, and other obstructions rather than comparing hedge heights in isolation.