Background
Paul Cheetham and Lauren Nicolosi and John Thompson owned adjoining properties in Loftus. Two Slender Weaver Bamboo hedges on the respondents’ land grew along the shared rear boundary. Cheetham alleged that the bamboo displaced a Colourbond fence, contacted guttering, sent culms onto his land, threatened drainage, and severely obstructed sunlight to his kitchen and living-room windows.
Cheetham sought complete removal of the bamboo and its root system. The respondents opposed removal, relying on the hedges’ privacy and screening benefits and contending that pruning and maintenance could address the concerns. Before the on-site hearing, they had pruned Hedge 1 and removed culms near the fence.
The Court’s Holding
Acting Commissioner Austin granted both the property-damage application under Part 2 and the sunlight-obstruction application under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW). The Court found that Hedge 1 had previously pressured and displaced the boundary fence, and that both hedges were likely to cause further damage without management. It found no evidentiary basis for the claimed risk to the applicant’s drainage, and treated ordinary leaf fall and gutter cleaning as part of normal urban property maintenance.
Although the hedge had been trimmed and did not severely obstruct sunlight on the hearing day, the Court found that Hedge 1 had caused severe obstruction to the nominated kitchen and living-area openings and was likely to do so again without ongoing management. Balancing that impact against the respondents’ legitimate privacy interest, the Court declined to order removal. It instead required fence repair and continuing, twice-yearly pruning and culm removal.
Key Takeaways
- The respondents must repair or realign the displaced section of Colourbond fence within 60 days, at their cost.
- In April and November each year, Hedge 1 must be pruned to no more than 3.5 metres and kept 50 centimetres clear of the boundary fence and eave.
- For Hedge 2, culms touching the boundary fence or growing onto Cheetham’s land must be removed to ground level at the same times.
Why It Matters
The decision illustrates that bamboo is a prescribed “tree” under the NSW neighbour-tree regime and can support both damage and high-hedge orders. It also confirms that a pre-hearing prune does not necessarily defeat a sunlight claim where the evidence shows a severe obstruction has occurred and is likely to recur.
The remedy was tailored to preserve the hedge’s privacy function while preventing renewed fence pressure, gutter contact, encroachment and excessive loss of direct sunlight.