Background
Paul and Lisa Fiani, residents at 91 Victoria Road in Bellevue Hill, applied to the Land and Environment Court seeking orders to remove or substantially prune three hedges on their neighbor Douka Kontopos’ adjoining property at 85 Victoria Road. The Fianis claimed the hedges—a Lilly Pilly hedge, a Waterhousia hedge, and a Leyland cypress hedge—severely obstructed their views of Sydney Harbour (including marina, headland, and island views enjoyed from living areas and a bathtub) and severely obstructed sunlight reaching five windows on the lower level of their dwelling.
The Fianis sought relief under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW). Ms. Kontopos opposed the application, arguing that the hedges provided essential privacy and that the claimed obstructions were not sufficiently severe to warrant court intervention.
The hearing took place onsite, allowing Acting Commissioner Entwisle to observe the hedges and their actual impacts on both properties.
The Court’s Holding
The Court refused the application entirely. For the Lilly Pilly and Waterhousia hedges, the Court found that while historical photographs showed these hedges had previously risen above the roofline of an adjacent building and partially obscured views, the obstruction was at most minor or moderate in nature—not the “severe” obstruction required under the Act. On the day of the hearing, the views were entirely unimpeded. The Court accepted the respondent’s written and oral commitment to prune the hedges to their current height at least twice yearly with quarterly inspections, which the Court found sufficient to prevent obstruction from becoming serious. The Court noted that if this commitment were breached, the applicants could reapply.
For the Leyland cypress hedge, the Court made a critical finding under section 14F(b) of the Trees Act: although it conceded that the hedge did cause severe obstruction of sunlight to two windows (W4 and W5), the Court refused relief because a predecessor hedge (a Golden Cypress hedge) had existed in that same location before the Leyland hedge was planted in 2000. When the applicants purchased their property in 2005, the prior hedge was already approximately 7 meters high. Crucially, windows W4 and W5 were not created until 2011 during renovations, at which time a substantial hedge was already in place. Under the Act, courts can only intervene in cases of “loss” of light or view, not continuation of pre-existing obstruction. The Court concluded that the Leyland hedge caused a continuation of obstruction, not a new loss, and therefore refused the application on this jurisdictional ground.
Key Takeaways
- Under the Trees Act, hedges must cause “severe” obstruction of views or sunlight to trigger court intervention; minor or moderate impacts are insufficient.
- A hedge must be obstructing views severely on the day of hearing and reasonably likely to persist in doing so; seasonal fluctuations and temporary growth do not suffice.
- The existence of a predecessor hedge at the time a dwelling or its windows were built precludes a finding of “loss” under the Act, even if the current hedge obstructs more light or view than the deteriorating predecessor.
- Demonstrated commitment to regular maintenance and inspection can persuade courts that obstruction will not become severe, even if past growth was problematic.
Why It Matters
This decision significantly clarifies the threshold for neighbor tree disputes under Australian law. It establishes that property owners cannot rely on the Trees Act to force modification of long-standing hedges simply because those hedges predate modifications to the complaining neighbor’s dwelling. The Court’s emphasis on whether a hedge (or its predecessor) existed when the affected dwelling features were built creates a temporal limitation on remedies that protects established garden amenities while still permitting intervention in cases of newly imposed obstruction.
The ruling also rejects a mechanistic approach to view and sunlight disputes, instead requiring courts to assess actual severity on the hearing date and realistic likelihood of persistence. This approach balances the privacy interests of hedge owners against the amenity expectations of neighbors, making clear that neighbors cannot demand removal of established landscaping merely because views are sometimes partially obscured or sunlight is seasonally reduced.