Background
Michael Stackpool and Richard Fisher are neighbours in adjoining Level 4 apartments at 22 Wylde Street, Potts Point. Stackpool’s unit (No. 17) sits set back from the harbourside of the building, while Fisher’s unit (No. 16) enjoys more expansive panoramic harbour views from its southern-facing balcony. Between approximately 2019 and 2020, a prior owner of Unit 16 placed a collection of potted plants along the southern terrace — primarily Magnolia ‘Little Gem’ specimens and Podocarpus falcatus ‘Clouds’ topiaries, together with smaller plants — which partially obstructed Stackpool’s eastward harbour views toward Elizabeth Bay, Rushcutters Bay, and Darling Point. Stackpool had purchased his apartment in 2013 and enjoyed unobstructed views through Unit 16’s glass balcony until the vegetation appeared. Fisher purchased Unit 16 in February 2021 and maintained the existing plantings.
After informal attempts to resolve the matter failed, Stackpool applied to the Land and Environment Court under Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking orders requiring Fisher to either remove the potted plants from the balcony or relocate them so they no longer obstructed his views. Fisher’s expert (a landscape architect from Terras) reported that the tallest plants — the Magnolias — reached only 1.9 m in height (including their 0.78 m pots), while the Podocarpus reached 2.37 m including their 0.65 m pots, and that the overall view obstruction was minor to moderate rather than severe.
An on-site hearing was held on 27 March 2026, during which Acting Commissioner Austin inspected both apartments, measured the vegetation with a height stick, and received expert evidence and submissions. The parties were each represented by counsel and landscape architect experts.
The Court’s Holding
Acting Commissioner Austin refused the application on the basis that two independent jurisdictional prerequisites under Part 2A were not satisfied. First, the potted vegetation was not “planted so as to form a hedge” within the meaning of s 14A(1) of the Trees Act. Drawing on Johnson v Angus [2012] NSWLEC 192 and Wisdom v Payn [2011] NSWLEC 1012, the Court held that Part 2A requires both that trees be arranged with a degree of linear regularity and that they be planted with the purpose of forming a hedge. The plants here were of varying species, individually potted, and arranged to create a garden-like courtyard setting rather than a hedge — and there was no intention at planting to form a hedge. The appearance of a hedge from Stackpool’s apartment was insufficient.
Second, the Court held that the vegetation did not rise to the requisite height of at least 2.5 m above “existing ground level” under s 14A(1). The Commissioner declined to treat the solid ground of the earth four storeys below as the relevant ground level. Instead, drawing on Boyd v Cinelli [2021] NSWLEC 1319, the Court found that “existing ground level” in the context of balcony planters should be treated as the floor level shared by both parties — Level 4 of the building. Measured from that level, the Magnolias reached only 2.1 m and the Podocarpus only 2.37 m, both below the 2.5 m threshold. Adopting the applicant’s approach (measuring from the ground four storeys below) would capture any balcony planting of any height that collectively exceeded 2.5 m, which was inconsistent with the legislative purpose.
Even if jurisdiction had been established, the Court also found that the view obstruction was not “severe” as required by s 14E(2)(a)(ii). Applying the Planning Principle from Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and taking the totality of the view from each nominated location (per Haindl v Daisch [2011] NSWLEC 1145), the Court accepted the respondent’s expert evidence that, while the vegetation partially obscured eastward views, the broader panoramic view — including harbour views to the south-east and vegetated outlooks to the south — remained substantially intact. The obstruction was assessed as minor to moderate at most, well below the “severe” threshold.
Key Takeaways
- Potted balcony plants arranged as a decorative garden, even if they visually resemble a hedge when seen from a neighbouring property, do not constitute a “hedge” under Part 2A of the Trees Act unless they were planted with the purpose of forming a hedge and exhibit linear regularity of arrangement.
- For balcony or elevated plantings, “existing ground level” under s 14A(1) is not automatically the earth’s surface at street level; courts will assess it contextually — typically as the shared floor level of the relevant storey — to avoid capturing vegetation of any height simply because the building itself contributes to the overall elevation.
- Part 2A sets a high bar: view obstruction must be “severe” (extreme or harsh), not merely minor to moderate. Courts assess the totality of the view from each location, not isolated segments, and must be satisfied the most essential and high-value view components are significantly impaired.
- Part 2A confers no right to a view; it is a limited statutory remedy, and all jurisdictional prerequisites must be independently satisfied before the Court has power to make any orders.
Why It Matters
This decision provides important practical guidance for apartment and strata owners in New South Wales regarding the limits of the Part 2A regime. It clarifies that collections of potted plants on balconies — however visually dense — will generally fall outside the Trees Act unless they were deliberately planted to form a hedge in a linear arrangement. It also resolves a previously undecided point of principle: courts will treat the shared floor level of an elevated terrace as “existing ground level” rather than the earth’s surface far below, preventing the regime from being extended to reach any balcony garden whose combined pot-plus-plant height exceeds 2.5 m above the street.
For strata residents and property lawyers, the case underscores that disputes about balcony plantings obstructing views in apartment complexes are unlikely to be resolved through the Trees Act and may need to be pursued, if at all, through strata by-laws or other avenues. It also reinforces that the severity threshold is genuinely demanding: partial obstruction of one aspect of a view, where broad panoramic elements remain intact, will not suffice.