Background
Michelle Angel and Karen Pemberton owned adjoining residential properties in Dora Creek. Ms Pemberton’s property contained a 13-clump bamboo hedge along the eastern boundary. Ms Angel, who bought her two-storey home around mid-2024, sought complete removal of the bamboo under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW).
Ms Angel alleged that the hedge obstructed sunlight to a bedroom window and two bathroom windows on the upper floor, and also complained of mould, rotted window frames and bamboo debris. At the on-site hearing, the bamboo was about 4 to 4.5 metres high, had been pruned, and was set about 40 centimetres from the boundary fence. Ms Pemberton wished to retain it for privacy and said she would maintain it at about four metres.
The Court’s Holding
Acting Commissioner Austin refused the Part 2A application. Although the bamboo was a qualifying hedge and Ms Angel had made a reasonable effort to reach agreement, the Court was not satisfied that it severely obstructed sunlight to the nominated windows, as required by s 14E(2)(a)(i).
The evidence did not establish that the bamboo blocked sunlight other than for a short part of the day. The applicant supplied no shadow diagrams, and the photographs were largely undated or untimestamped and did not reliably show shade cast by the bamboo on the nominated windows. One photograph indicated that sunlight still reached the first floor during the afternoon.
The Court also considered that the bamboo had been more than eight metres high when Ms Angel bought her property and was now lower. Part 2A does not create a general right to sunlight or permit a purchaser to obtain more solar access than was available at purchase. Complaints about debris and unproven damage were outside the scope of the Part 2A application.
Key Takeaways
- A high hedge application requires proof of a severe, not merely inconvenient, obstruction of sunlight to a dwelling window or of a view.
- Photographs without reliable dates, times or demonstrated shadow effects may not prove the required severity of obstruction.
- Part 2A does not give a later purchaser a right to improve solar access beyond what existed when they acquired the property.
Why It Matters
The decision illustrates the narrow operation of NSW’s high-hedge jurisdiction. A qualifying hedge alone is insufficient: an applicant must prove a severe impact on the particular statutory interest, supported by persuasive evidence.
It also separates sunlight-and-view claims under Part 2A from complaints about tree debris or property damage, which may require a differently framed application and evidence establishing causation.