Fam v Wang

[2024] NSWLEC 1853

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fam v Wang [2024] NSWLEC 1853

Hearing dates:

19 September 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) Within 60 days of the date of these orders, the respondent, at his expense, shall remove all bamboo east of the side boundary between the applicant's property and the applicant's east side neighbour's property, comprising Mr Wang's bamboo clumps 1 and 2, and all bamboo culms (stems) which have encroached into the garden of the applicant's east side neighbour. The respondent shall maintain these areas free of bamboo in the future. Should replacement trees be planted on the respondent's land, east of the applicant's east side boundary, such replacement trees shall be maintained at a height not exceeding 2.5 metres.

(2) Within 60 days of the date of these orders, the respondent, at his expense, shall prune the remaining bamboo (comprising Mr Wang's bamboo clumps 3 - 6 inclusive), to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(3) During March 2025 and during March of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 3.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(4) During December 2025 and during December of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(5) The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicant shall provide all required access for undertaking the pruning works or clearing debris upon 72 hours' notice from the respondent by email.

(7) All pruning works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of sunlight to windows of a dwelling – privacy important to respondent – orders balance both parties’ needs

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Ihab Nassef Yanny Fam (Applicant)
Huisan Wang (Respondent)

Representation:

I Fam (Self-represented) (Applicant)
H Wang (Self-represented) (Respondent)

File Number(s):

2024/250061

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Ihab Nassef Yanny Fam, the applicant, and Huisan Wang, the respondent, own and occupy properties in Concord which share a rear boundary. Both properties comprise two-storey attached townhouses with rear courtyards. The common boundary is 5 m long and is orientated approximately east to west. Mr Fam’s courtyard is narrower than Mr Wang’s, such that Mr Wang’s rear boundary extended east for a further 2.2 m beyond the common boundary. Mr Fam’s property is located south of Mr Wang’s and Mr Fam has occupied his property since 2013.

2. In October 2021, about six advanced clumps of Slender Weavers Bamboo (the bamboo) were planted in a garden bed along the rear of Mr Wang’s land by the previous owner. When Mr Wang initially inspected his future home in March 2022, the bamboo had grown strongly and already established a lush privacy screen between the parties’ properties. In his Statement of 3 September 2024, Mr Wang said, “[t]he bamboo and the private backyard were the main selling points and the primary reason my family and I decided to buy this property”. Upon Mr Wang’s occupation in June 2022, the bamboo was about 5-6m tall.

3. Prior to the bamboo, there had been no trees along the respondent’s back boundary and the properties were separated by a 1.8m tall Colorbond fence. Mr Fam said he had received ample light through his back door and ground floor windows prior to the bamboo but the situation markedly changed as the bamboo grew.

4. On 10 April 2023, Mr Fam initially requested Mr Wang trim the bamboo to 2.5m tall because at the existing height of 6m, “the sun no longer reaches my back yard and the two windows on the ground floor”. On 30 April 2023, Mr Fam acknowledged receipt of Mr’ Wang’s letter and noted an intention to prune the bamboo “to a reasonable condition” in coming weeks.

5. With no noticeable improvement in sunlight access having occurred by the winter solstice of 2023, Mr Fam again wrote to Mr Wang and requested bamboo pruning to a maximum height of 3m. Mr Fam reiterated that all sunlight to downstairs windows was obstructed by the bamboo and that sunlight to upstairs windows had also “declined dramatically”. Mr Fam noted that the house was now a few degrees colder than it had been before the bamboo and contended the Colorbond fence was sufficient for privacy.

6. Upon receiving no reply by 17 August 2023, Mr Fam advised Mr Wang that he would commence proceedings with “NSW Land and Environment Court” unless he heard back soon. Mr Wang replied on 4 September 2023 that he had pruned the bamboos’ height and removed at least 20 culms (canes) from near ground level. Mr Wang stressed the importance of the bamboo and claimed both parties’ upper floor privacy would suffer if the bamboo was pruned under 5m tall. Mr Wang said, “[w]e will continue to maintain the bamboo in a reasonable condition. However, we will not consider removing all of them or pruning them to 3 meters”.

7. Consequently, to remedy obstruction of sunlight to his property, Mr Fam submitted an application to the Land and Environment Court (the Court), pursuant to s 14B of Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), which proposed the following (summarised) orders:

1. Remove all bamboo trees, or

2. Maintain all bamboo trees at or below a height of 2 metres, or

3. Remove all bamboo trees and replace them with trees of a different species that are maintained at or below a height of 2 metres

Onsite hearing

8. The hearing took place onsite with both parties self-represented. An initial inspection from Mr Wang’s rear yard displayed that the bamboo had been planted at close and regular intervals and was growing in an uninterrupted row along the boundary. It averaged about 8m in height, taller than Mr Wang had suggested, with some stems approaching 10m. Mr Wang indicated the bamboo clumps from which he had removed multiple canes near ground level and displayed a hook on a long pole that he used to pull the tall canes down and reduce their length.

9. Nonetheless, as the bamboo along the respondent’s rear boundary was located less than 4m north of Mr Fam’s dwelling, Mr Fam’s sunlight availability was profoundly impacted. Additionally, as noted at Question 9 of Mr Fam’s Application Claim Details (Form G), bamboo stems had ‘escaped” at the eastern end of the row under boundary fences into both Mr Fam’s property and into the back yard of Mr Fam’s east side neighbour. The bamboo growth in Mr Fam’s neighbour’s yard was particularly vigorous and was also contributing to sunlight obstruction.

10. Though Mr Fam proposed removal of the bamboo or pruning and maintenance at a height of about 2m, Mr Wang had formulated an alternative compromise which allowed retention of reasonable privacy between the properties. Mr Wang’s plan involved removal of bamboo clumps at the eastern end of the row along with clearing the escaped bamboo from Mr Fam’s east side neighbour’s back yard.

Jurisdictional requirements

11. The application is made under Pt 2A of the Trees Act, which provides a limited jurisdiction and does not assume one should have a right to sunlight or views. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of sunlight to a window of a dwelling, or of views from the applicant’s dwelling. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.

12. Section 14A(1) states:

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level.

13. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of:

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

14. Section 14C sets down the requirements for notice of the application to be given to the owners of the affected land on which the trees are located

15. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).

16. Section 14E addresses matters of which Court must be satisfied before making an order, as follows:

1. (1) The Court must not make an order under this Part unless it is satisfied:

2. (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and

3. (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 14C.

17. Section 14E(2) of the Trees Act is particularly significant. Section 14E(2) states:

1. (2) The Court must not make an order under this Part unless it is satisfied:

2. (a) the trees concerned

3. (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

4. (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

5. (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

18. If the Court is satisfied an obstruction is severe at s 14E(2)(a), it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Trees Act.

Do the trees form a hedge?

19. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?

20. Under s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is considered a tree for the purpose of the Trees Act

21. While some of the stems had been pruned, the bamboo nonetheless averaged about 8m in height. Wisdom v Payn [2011] NSWLEC 1012 notes, at [45]; “…the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge”. The bamboo had been planted in a straight row at regular intervals. Consequently, I am satisfied that s 14A(1) of the Trees Act is engaged.

22. Mr Fam is the owner of his property and Mr Wang’s property is situated on adjoining land. Therefore, s 14B of the Trees Act is engaged.

Did the applicant make a reasonable effort to reach agreement?

23. Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

24. As noted above, Mr Fam wrote to Mr Wang on multiple occasions and clearly explained the obstruction of sunlight allegedly caused by Mr Wang’s bamboo. Mr Fam noted that his sunlight access was previously unobstructed and advised Mr Wang of his intention to commence proceedings in the Court when Mr Wang failed to reply. Consequently, I am satisfied the applicant made a reasonable effort to reach agreement with the owner of the land on which the trees are situated, such that s 14E(1)(a) of the Trees Act is engaged.

25. Evidence on file showed Mr Fam had given notice of the application in accordance with s 14C. Therefore, s 14E(1)(b) of the Trees Act is also satisfied.

26. The next step is to assess the severity of obstruction of sunlight to nominated windows of the applicant’s dwelling as a consequence of any or all of the trees in the hedge.

Is the obstruction of sunlight severe?

27. Section 14E(2)(a)(i) states:

14E Matters of which Court must be satisfied before making an order

…

(2) The Court must not make an order under this Part unless it is satisfied that:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii) ….

28. Mr Fam claimed that all sunlight to three ground floor windows was obstructed by the bamboo from April to August, whereas the windows had received sunlight for about six hours per day before the bamboo was present. Considering the bamboos’ average height of about 8m and the close proximity and density of the bamboo hedge, along with the northern aspect of the applicant’s rear yard, I was persuaded by Mr Fam’s claim.

29. Consequently, I was satisfied that Mr Wang’s bamboo hedge severely obstructed sunlight to three windows at the rear of Mr Fam’s dwelling, such that s 14E(2)(a) of the Trees Act is engaged.

Conclusion - Balancing of the parties’ interests

30. As s 14E(2)(a) is engaged, the Trees Act requires me to consider the balancing of interests in s 14E(2)(b). In order to determine the balance inherent in this subsection, assessment of relevant matters in s 14F is required:

31. Mr Wang’s key concern underpinning his resistance to the pruning of height was the bamboo’s contribution to his family’s privacy in rooms at the rear of their house, particularly his office on the upper floor. Privacy is addressed at s 14F(l), and is the consideration most commonly raised by respondents.

32. Although the bamboo hedge was causing a severe obstruction of sunlight to Mr Fam’s ground floor windows, particularly in winter, I considered Mr Fam’s proposed orders, if granted, would produce an unsatisfactory outcome as the back yards and rear of both parties’ dwellings would be entirely exposed to oversight through each other’s upper floor windows. Mr Wang’s alternative proposal, which included removal of about 30% of the eastern side of the hedge, conversely, retained a reasonable level of privacy and provided a basis for the orders which I subsequently determined.

33. The kitchen window of Mr Fam’s dwelling was also on the eastern side while his west side windows were in less significant service rooms (s 14F(r)). The orders allowed for maximum sunlight to the kitchen window, which Mr Fam prioritised.

34. During March of each year, all remaining bamboo shall be pruned to a height not exceeding 3.6 m, thus providing markedly increased and reasonable sunlight access for Mr Fam when the sun is lower in the sky during winter. During December of each year, when the sun passes overhead much higher in the sky, all remaining bamboo shall be pruned to a height not exceeding 4.6 m, to provide more privacy when both parties are likely to spend more time outdoors. Therefore, the orders strike a balance between both parties’ needs.

Orders

35. The orders of the Court are:

1. Within 60 days of the date of these orders, the respondent, at his expense, shall remove all bamboo east of the side boundary between the applicant’s property and the applicant’s east side neighbour’s property, comprising Mr Wang’s bamboo clumps 1 and 2, and all bamboo culms (stems) which have encroached into the garden of the applicant’s east side neighbour. The respondent shall maintain these areas free of bamboo in the future. Should replacement trees be planted on the respondent’s land, east of the applicant’s east side boundary, such replacement trees shall be maintained at a height not exceeding 2.5 metres.

2. Within 60 days of the date of these orders, the respondent, at his expense, shall prune the remaining bamboo (comprising Mr Wang’s bamboo clumps 3 - 6 inclusive), to a height not exceeding 4.6 m above the level of the respondent’s back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant’s land.

3. During March 2025 and during March of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 3.6 m above the level of the respondent’s back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant’s land.

4. During December 2025 and during December of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 4.6 m above the level of the respondent’s back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant’s land.

5. The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

6. The applicant shall provide all required access for undertaking the pruning works or clearing debris upon 72 hours’ notice from the respondent by email.

7. All pruning works shall be undertaken during reasonable daytime working hours.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 08 May 2025