Background
Kaelie Yerbury owned a two-storey home adjoining Robert Gourlay’s property in Bexley. After Yerbury added the upper storey, Gourlay planted a slender weaver’s bamboo hedge along his rear boundary to provide privacy and screen overlooking. The hedge later grew above Yerbury’s dwelling before Gourlay pruned it shortly before the hearing.
Yerbury applied under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW), seeking removal of the bamboo. She alleged that culms had leaned against her home and scratched its external surfaces and guttering, and that the expanding bamboo clumps were pressing against the dividing fence and sleeper. She also alleged severe obstruction of sunlight to three southeast-facing windows.
The Court’s Holding
Acting Commissioner Galwey granted the application in part under Part 2. The Court found that bamboo is a “tree” under the Act; Yerbury’s limited efforts to reach agreement were reasonable in the circumstances of the parties’ acrimonious relationship; and the hedge had probably caused minor scratching to Yerbury’s dwelling. The bamboo was also likely to damage the dividing fence in the near future as its clumps expanded against it.
Removal, rather than ongoing pruning, was appropriate. The dense planting grew directly against the fence, was fast-growing and onerous to maintain, and had not been adequately controlled until proceedings were pending. Gourlay was ordered to remove all bamboo along the rear-yard boundary within 30 days and take reasonable steps to prevent regrowth. Any replacement hedge must grow no taller than 3 metres, be maintained at no more than 2.5 metres, and be planted at least 50 cm from the boundary fence.
The Court rejected the Part 2A sunlight claim. Although the hedge had obstructed some summer morning sunlight, it did not severely obstruct direct sunlight to the southeast-facing windows during winter, when sunlight was most needed. The statutory threshold was therefore not met.
Key Takeaways
- Minor physical damage and a near-future risk of fence damage can support orders under Part 2 of the Trees Act.
- A hedge planted hard against a boundary fence may warrant removal where practical maintenance cannot reliably prevent further disputes or damage.
- For Part 2A, severe obstruction concerns direct sunlight, not merely reduced ambient daylight.
Why It Matters
The decision shows that a privacy hedge does not immunise a neighbour from responsibility where its growth damages adjoining property or is likely to do so. The Court may prefer removal where pruning is an unreliable long-term solution.
It also confirms the demanding threshold for sunlight claims: seasonal and directional evidence matters, and obstruction of direct sunlight must be severe before Part 2A relief is available.