Mallios v Nicholls

[2025] NSWLEC 1553

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mallios v Nicholls [2025] NSWLEC 1553

Hearing dates:

16 July 2025

Date of orders:

01 August 2025

Decision date:

01 August 2025

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Orders of the Court are:

(1) The application to remove the hedge is approved in part.

(2) Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to remove the first 2 metres of bamboo located in the most northerly position along the shared property boundary between 5 and 7 Borgah Street, Carss Park including all the remaining stumps, trunks and roots. Should replacement landscaping be undertaken in this location, the mature height of any plants shall be limited to less than 2 metres in height.

(3) Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to prune the bamboo hedge located along the shared property boundary between 5 and 7 Borgah Street, Carss Park so that it reaches a maximum height of 1.5 metres above the existing brick boundary fence. Pruning shall be undertaken twice per year for the life of the hedge.

(4) The work in Orders (2) and (3) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence caused by trees – sunlight – obstruction not severe – application dismissed

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pts 2, 2A, ss 7, 9, 10, 12. 14A, 14B, 14F

Cases Cited:

Vartazarian v Elworthy [2020] NSWLEC 1462

Texts Cited:

Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009

WorkCover NSW, Code of Practice for the Amenity Tree Industry 1998

Category:

Principal judgment

Parties:

Dimitrios Mallios (First Applicant)
Angela Mallios (Second Applicant)
Darren Nicholls (First Respondent)
Jodie Nicholls (Second Respondent)

Representation:

Counsel:
S Hanscomb (Applicants)
P Rigg (Solicitor) (Respondents)

Solicitors:
Brian Phillips Legal (Applicants)
Solicitor and Barrister Peter Rigg (Respondents)

File Number(s):

2025/173365

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr and Mrs Mallios (the ‘Applicants’) applied to the Court, pursuant to s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the ‘Act’), seeking orders for the Respondents to remove the bamboo hedge located between the properties. The hedge is located close to the Respondents’ side boundary of 7 Borgah Street, Carss Park. The Applicants own 5 Borgah Street, Carss Park, and share a side boundary with the Respondents’ side boundary.

2. The Applicants submit that the trees severely obstruct sunlight reaching window and door openings of the dwelling, in particular including the living room, kitchen, and side and rear access area.

3. The Nicholls (the ‘Respondents’) enjoy the privacy and amenity benefits the bamboo hedge provides (particularly to the rear yard where there is a spa pool) and seek to maintain the hedge in its current state. The hedge is a clumping bamboo hedge and has grown to between 3 and 8 metres in height.

4. The Applicants are also concerned about the physical damage the bamboo hedge has caused (and will potentially continue to cause) to their dwelling, including damage to the antennae dish (reduced efficacy) used for internet connection and television reception, and the flyscreen on the second floor rear window. The Applicants are also concerned about excessive noise made by the bamboo culms (stems) during periods of high winds.

5. Oral expert evidence was given during the hearing by a telecommunications expert Mr Christodoulou. Oral evidence was given by Mr Mallios during the hearing. Otherwise, I rely on my observations made during the site view and hearing.

6. The issues raised by the Applicant regarding shade caused by the hedge located on neighbouring land must be considered under Pt 2A of the Act.

7. The issues raised by the Applicant regarding damage caused by the hedge located on neighbouring land must be considered under Pt 2 of the Act.

8. The trees are planted along the shared property boundary. The parties agree that the trees have been planted as a hedge and rise to more than 2.5 metres in height and I am satisfied the jurisdictional tests have been met and the Court's power under s 9 of the Act has been engaged. The trees are on adjoining land (s 14B).

9. The issues to be determined are as follows:

1. Is there a severe obstruction of sunlight to the window and door caused by the hedge?

2. If so, does the Applicants’ desire for direct sunlight outweigh the reasons not to interfere with the hedge? Such reasons may include the privacy they provide, their environmental benefits or their contribution to amenity.

10. An order must not be made unless the trees are severely obstructing sunlight to a window of a dwelling situated on the Applicants’ land, and the severity and nature of the obstruction is such that the Applicants’ interest in having the trees pruned outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees.

11. The following addresses matters that must be considered in determining whether orders are appropriate.

1. The hedge is located to the north-east of the Applicants’ property and, I observed during the onsite hearing, does cast shade on the eastern facing kitchen window and glass sliding door to the living area during all of the available morning hours of the day. There are other trees and vegetation and built structures that also cast shade on to the window and glass sliding door.

2. The hedge was planted on the Respondents’ property after the Applicants had purchased their property.

3. The Respondents submitted that the hedge was planted as a part of a planned landscape design to act as a privacy screen and for the overall amenity benefits, and that removing the hedge would diminish these attributes.

4. During the onsite hearing I observed the position of the sun relative to the dwelling and Applicants’ kitchen window and glass sliding door and resultant shade patterns and concluded that the hedge added to the loss of sunshine by approximately one and a half hours of morning sun during winter, and less than this during other seasons due to the higher position of the sun during those periods. Due to the low angle of the sun in winter, the eaves of the Applicants’ dwelling also cast shade onto the windows and glass sliding door after approximately 11am.

Is there a severe obstruction of sunlight?

12. An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land if the obstruction occurs as a consequence of trees being situated on adjoining land.

13. I can see nothing at s 14B of the Act to prevent, as an owner of land, applying to the Court for orders under Pt 2A of the Act. However, the Court has relied upon background material such as the Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), 2009 (the ‘2009 Review’) in many hearings under Pt 2A. For instance, see Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462. The 2009 Review concluded, in part, (on p 35) that the scope of Pt 2A should recognise the significant health, environmental and other benefits of urban vegetation, and that there could be a presumption in favour of maintaining the existence and health of urban trees.

14. The Applicants’ dwelling is separated from the property boundary by a relatively narrow path. The bamboo grows against and along the property boundary and grows to a height above the eaves and forms a relatively dense screen that fills the vertical distance between the fence and the eaves of the dwelling. Although during the hearing I observed dappled shade passing through the bamboo, from my own observations I concluded that the bamboo obstructs the morning sun that would otherwise reach the subject windows of the Applicants’ dwelling. The Applicants did not press the shade the issue of sunlight obstruction to their rear entertaining area and garage. In the absence of the bamboo, the windows would receive sunlight during the morning throughout the year, I find this is a severe obstruction of sunlight to the Applicants’ window and glass sliding door. The hedge casts shade that represents a complete loss of sun for all of the available hours of morning sun that had previously reached these windows.

15. I have considered the matters at s 14F of the Act.

16. The bamboo has grown to a height of between 4 and 8 metres and is located close to the Applicants’ property boundary and dwelling. The bamboo was planted after the Applicants owned and lived in their house.

17. The bamboo has no historical, cultural, social or scientific value, and provides only a minor contribution to the local ecosystem and biodiversity. The bamboo does contribute to the privacy enjoyed by the Respondents particularly screening the spa pool located in their rear yard.

18. Due to the type of bamboo and typical fast growth rates, pruning of the bamboo to a certain height would be burdensome and difficult to achieve throughout the year, and so only where the bamboo obstructs the sunlight orders will be made for its removal rather than pruning.

19. I am satisfied that there is a severe obstruction of sunlight to the main living areas of the house, and orders will be made to remove that portion of the hedge that obstructs sunlight from reaching the subject windows.

20. Damage caused by the hedge

21. The Applicants also applied to the Court for removal of the hedge pursuant to s 7 (Pt 2) of the Act. The Applicants submit that the hedge has damaged performance of the satellite dish and has caused the rear second floor flyscreen to be detached from the window and be inoperable. No compensation for these damages is sought, only orders for the removal of the hedge.

22. In applications under Pt 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the Applicants’ property or is likely to cause injury to any person.

23. I accept the expert oral evidence given by Mr Christodoulou during the hearing that the reduced performance of the satellite dish has been caused by the growth of the bamboo hedge.

24. I accept the oral evidence given by Mr Mallios during the hearing that rear second floor flyscreen was damaged during high winds by the tall bamboo culms (stems) and that the flyscreen remains inoperable and not able to be reattached.

Contribution of trees to privacy and landscaping

25. I am satisfied that the jurisdictional tests in s 10(1)(2) are met, and I consider the matters at s 12 below.

26. The hedge is close to the boundary between the properties and is able to survive pruning over the longer term. The hedge was planted as a landscape element to provide a privacy screen in particular to the spa pool located on the Respondents’ property in the rear yard.

27. I accept the Applicants’ submissions that, due to it’s height, the hedge has caused, and is likely in the near future to cause damage to the Applicants’ property, however this potential can be avoided by pruning whilst still providing the privacy and landscaping benefits rather than entire removal of the hedge. As measured during the on-site hearing, I concluded that a hedge height of 1.5 m above the existing brick boundary fence (itself 1.7 m high) would provide an adequate privacy screen to the spa pool on the Respondents’ property. Orders for pruning of the hedge will be made to both prevent further damage being caused, and continue privacy and amenity for the Respondents.

28. Although the Respondents have taken steps (poles and wires) to temporarily prevent the bamboo leaning over towards the Applicants’ property, due to the likely high level of maintenance required, I do not accept this is an adequate long term solution.

Conclusion

29. The trees were planted so as to form a hedge, however only part of it severely obstructs available sunlight. Orders for removal of part of the hedge (the most northerly 2 m) will be made.

30. The hedge has caused damage and orders for pruning will be made.

Orders

31. The Court orders:

1. The application to remove the hedge is approved in part.

2. Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to remove the first 2 metres of bamboo located in the most northerly position along the shared property boundary between 5 and 7 Borgah Street, Carss Park including all the remaining stumps, trunks and roots. Should replacement landscaping be undertaken in this location, the mature height of any plants shall be limited to less than 2 metres in height.

3. Within 60 days of the date of this judgment the Respondent is to engage and pay for an AQF level 3 arborist to prune the bamboo hedge located along the shared property boundary between 5 and 7 Borgah Street, Carss Park so that it reaches a maximum height of 1.5 metres above the existing brick boundary fence. Pruning shall be undertaken twice per year for the life of the hedge.

4. The work in Orders (2) and (3) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

P Nichols

Acting Commissioner of the Court

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Amendments

05 August 2025 - Correction made to the Applicants' Solicitor firm name.

Decision last updated: 05 August 2025