The Owners - Strata Plan No 52378 v Huang

[2025] NSWLEC 1125

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 52378 v Huang [2025] NSWLEC 1125

Hearing dates:

22 November 2024

Date of orders:

06 March 2025

Decision date:

06 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [104].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – whether strata plan can make an application – whether multiple applications required – neighbouring cypress hedges – obstruction of sunlight and views – whether the obstruction is severe – balancing of interests – orders for tree removal, tree pruning and ongoing maintenance

Legislation Cited:

Interpretation Act 1987 (NSW), Sch 4

Real Property Act 1900 (NSW), s 3

Strata Schemes Development Act 2015 (NSW), ss 4, 24

Strata Schemes Management Act 2015 (NSW), ss 8, 9

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, Pt 2A, ss 3, 6, 7, 14A, 14B, 14C, 14D, 14E, 14F

North Sydney Local Environmental Plan 2013, cl. 5.10, Sch 5

Cases Cited:

Owners of Strata Plan 4015 v Mizrachi [2024] NSWLEC 1304

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Salmon v Kibble & anor [2012] NSWLEC 1359

Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140

The Owners – Strata Plan No 50747 v Zavetsanos [2024] NSWLEC 1671

Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462

Texts Cited:

North Sydney Development Control Plan 2013

NSW land registry services: 26 February 2025

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 52378 (Applicant)
Diana Huang (Respondent)

Representation:

Counsel:
T Broomfield (Agent) (Applicant)
L Simms (Respondent)

Solicitors:
Pancific Legal (Respondent)

File Number(s):

2024/329063

Publication restriction:

Nil

Judgment

Background to the application

1. Commissioner: A row of 21 cypress trees grows on Diana Huang’s Kurraba Point property along the common boundary she shares with the neighbouring apartments. The trees’ foliage is relatively close to windows of some of those apartments. Occupiers of those apartments found the trees obstructed sunlight to, and views from, their windows. To remedy this, The Owners – Strata Plan No 52378 (the applicant) applied to the Court seeking orders for nine of the trees to be removed and ten trees to be pruned.

2. Ms Huang (the respondent) disputes that the trees impact the apartments so significantly that orders should be made.

3. The hearing in these proceedings took place onsite. The Court viewed the trees, the affected windows, and the surrounding environment. Ms Simms, of Counsel, represented the respondent, while Mr Broomfield, who is an owner of one of the applicant’s apartments, acted as agent for the applicant. Ms Huang gave oral evidence. The Court was also provided with the following material: affidavits sworn by Ms Huang and by apartment owners and occupiers Antony Heath, Jeanette Cornejo, Terrence Bloomfield, Scott Muller, and Matthew Miller; and a report by Jack Williams, consulting arborist. The respondent requested Mr Williams’ attendance at the hearing for cross-examination. Mr Williams was unavailable due to medical reasons. Ms Simms submitted that the Court should reduce the weight given to Mr Williams’ report, as his report is over 12 months old and he could not be cross-examined. I further rely on my own arboricultural expertise where it is relevant to this decision.

The trees

4. Both properties run down to the water to their east. Ms Huang’s land is north of the applicant’s land. The 21 trees that are the subject of this application are to the rear of her dwelling and are numbered east to west (tree T1 nearest the water).

5. Mr Williams inspected the site on 6 September 2023. In his report (Exhibit B) he identified all 21 trees as Leighton Green cypress (Cupressus × leylandii [syn. × Hesperotropsis leylandii] ‘Leighton Green’) planted around 2009. He estimated trees T1–T19 were 4.0–5.5 metres tall and trees T20 and T21 were 7.5–8.0 metres tall. The trees’ stems are located 1.1–1.6 metres from the common boundary fence.

6. Ms Huang had trees T1–T19 pruned on 21 September 2023, around two weeks after Mr Williams’ site visit. From my own observations during the onsite hearing, over 12 months later, I estimated T1–T19 had an average height of 4 metres, while T20 and T21 were approximately 10 metres tall. The trees are all growing vigorously.

7. Given the appearance of the trees, they are reasonably regarded as two separate hedges: the shorter trees (T1–T19) and the taller ones (T20 and T21). Trees T20 and T21 are on a higher terrace; T20’s foliage is physically separated from that of tree T19 on the lower terrace; foliage of trees T1–T19 is continuous, despite a minor change in level part-way along. I treat the trees as two hedges in this decision: T1–T19 in one hedge and T20 and T21 in the second hedge.

Framework for this decision

8. The application is made under Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act), which applies only to certain trees.

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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

9. The parties agree that the trees are planted so as to form a hedge. I, too, am satisfied that the trees are planted to form a hedge and that they rise to more than 2.5 metres in height. They are trees to which Pt 2A applies.

10. The jurisdiction of Pt 2A of the Trees Act is limited at s 14B.

14B Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent a 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.

11. In the definitions at s 3 of the Trees Act, an “…owner of land includes the occupier of the land.”

12. Mr Broomfield explained that he was advised by the Court when arranging the respondent’s application that the owners of the strata plan should make the application, as they have done. For the respondent, Ms Simms argued that the affected dwelling owners must individually apply for orders. Therefore, this is the first matter the Court must determine below.

13. The applicant must give notice of the application to the respondent, the local council and any other relevant authority as set out at s 14C of the Trees Act.

14. The applicant seeks orders that the respondent removes some trees and reduces the height of others and thereafter maintains them at the reduced height. These orders are within the Court’s jurisdiction for making orders at s 14D, although the Court is not required to make those orders but “may make such orders as it thinks fit” to remedy a severe obstruction of sunlight or views caused by the trees.

15. Apart from giving the required notice, the applicant is also required to make a reasonable effort to reach agreement with the respondent: s 14E(1) of the Trees Act. Ms Simms explained that the respondent does not contest that the applicant made a reasonable effort. I am satisfied that the applicant gave the notice required by s 14C and made a reasonable effort to reach agreement with the respondent.

16. The Court’s jurisdiction is further restricted at s 14E(2) of the Trees Act:

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

(1) …

(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) are severely obstructing a view from a dwelling situated on the applicant’s land, and

   (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.

17. The applicant contends that the trees severely obstruct sunlight to, and views from, various windows of several apartments in the strata’s building. The respondent disputes this. Ms Huang thinks any obstruction the trees cause is not severe. Whether the trees cause a severe obstruction of sunlight or views for apartments in the applicant’s building is the second issue to be determined below.

18. If the Court finds that the trees do cause a severe obstruction of sunlight or views, s 14E(2)(b) requires the Court to balance the reasons for and against making orders.

19. Finally, before making any orders, the Court must consider a range of matters set out at s 14F of the Trees Act.

Whether the strata plan owners can make the application

20. The strata plan owners commenced these proceedings and are identified as the applicant. Before the hearing, Ms Huang, via her legal representative Raymond Zhang of Pancific Legal, foreshadowed that this issue would be raised as a reason to discontinue or dismiss these proceedings.

The applicant’s submissions

21. Mr Broomfield submitted for the applicant that the Court’s staff advised him to make the application in the name of the strata scheme’s owners corporation. He stated that the aim of the Trees Act is to provide an avenue for resolving disputes between neighbours, and the Court now has the opportunity to do so. He pointed out that the Court has resolved many proceedings commenced by owners corporations. Mr Broomfield put to the Court that individual lot owners only own the internal surfaces and airspace within each lot; therefore, as the owner of the rest of the property, the owners corporation is the rightful applicant.

The respondent’s submissions

22. Ms Simms posited the argument that only individual dwelling owners can make an application under Pt 2A of the Trees Act, citing Salmon v Kibble & anor [2012] NSWLEC 1359 (Salmon), where Fakes C found at [3]:

“[3] The Court has required applications to be made by owners of individual dwellings otherwise the Court would have no jurisdiction to make orders under s 14D.”

23. Ms Simms clarified that this is not just some technical objection for the sake of thwarting the application. Ms Simms is familiar with the jurisdiction of the Trees Act and the different approaches taken by members of the Court. If there is some confusion among the Court’s registry and commissioners, she suggested it should now be resolved.

24. Ms Simms argued that what we have here is really four applications. Each of the four dwellings is affected in its own way, with its own circumstances, by particular trees in the hedge, and needs to be determined individually.

25. Ms Simms opined that the relevant strata legislation makes good her proposition: the Strata Schemes Development Act 2015 (NSW) and the Strata Schemes Management Act 2015 (NSW).

26. At s 24 of the Strata Schemes Development Act, common property is vested in the owners corporation of the strata scheme. Ms Simms argued that the relevant windows and viewing points in the application are within rooms contained within individual lots, which are not common property and therefore are not owned by the strata scheme’s owners corporation. Therefore, the owners corporation is unable to make the application to the Court.

27. Further, Ms Simms argued that the Strata Schemes Management Act establishes at s 8 that a strata scheme’s owners corporation is made up of owners of lots in the strata scheme. The owners corporation’s responsibilities, established at s 9, include “(a) the management and control of the use of the common property of the strata scheme, and (b) the administration of the strata scheme.” Ms Simms pointed out that the owners corporation has no responsibility for the management of individual lots within the strata scheme.

28. Referring to the definition of ‘land’ in the Interpretation Act 1987 (NSW), Ms Simms said that identifying the owner of land should reflect the property interest – the person with the property right of the dwelling – which is contained within each lot rather than within the common property.

29. Ms Simms proposed that the only correct way to make this application was for the four affected dwelling owners to each make an application. Alternatively, Ms Simms suggested that the individual affected dwelling owners could be joined to proceedings once they are commenced. Nevertheless, Ms Simms asked the Court not to go through such an administrative process here, but to determine this application on its merits.

Findings

30. As Ms Simms submitted, despite Salmon, the Court has recently heard applications made pursuant to Pt 2A of the Trees Act by owners corporations – examples include The Owners – Strata Plan No 50747 v Zavetsanos [2024] NSWLEC 1671 and Owners of Strata Plan 4015 v Mizrachi [2024] NSWLEC 1304 – but has also heard applications from individual lot owners within the one strata: for example, Vartazarian v Elworthy; Fallows v Elworthy [2020] NSWLEC 1462. I appreciate and accept Ms Simms’ proposition that each of the four dwelling owners is affected differently by the trees, with their own individual circumstances, and sometimes by different trees within the hedge. I am not convinced that this precludes the owners corporation making one application to address the range of issues.

31. Firstly, returning to s 14B of the Trees Act (with my emphasis in italics):

An owner of land may apply to the Court for an order to remedy, restrain or prevent a 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.

32. This section uses, separately and specifically, the words ‘land’ and ‘dwelling’. Definitions at s 3 of the Trees Act define neither term. Both terms are used in relation to the applicant elsewhere throughout Pt 2A of the Trees Act: at ss 14D(1) and 14E(2) (“a dwelling situated on the applicant’s land”); at ss 14F(a), (b) and (r) (“the dwelling the subject of the application”); at s 14F(c) (“during the period that the applicant has owned (or occupied) the relevant land”); and at s 14F(e) (“the applicant’s land”).

33. Other sections refer simply to “the applicant”, being the person, people or body applying according to s 14B.

34. Neither the Strata Schemes Development Act nor the Strata Schemes Management Act provides a definition of ‘land’.

35. Related legislation provides helpful definitions. ‘Land’ is defined at s 3 of the Real Property Act 1900 (NSW) as:

Land, messuages, tenements, and hereditaments corporeal and incorporeal of every kind and description or any estate or interest therein, together with all paths, passages, ways, watercourses, liberties, privileges, easements, plantations, gardens, mines, minerals, quarries, and all trees and timber thereon or thereunder lying or being unless any such are specially excepted.

36. Schedule 4 of the Interpretation Act states:

land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein.

37. Chief Justice Preston considered ‘land’ within the Trees Act when determining an application made under Pt 2 of the Trees Act: Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [162]-[167]. At [165], [166], his Honour wrote:

“165 Conventionally, land includes both “corporeal” and “incorporeal” components or “hereditaments”. Broadly, corporeal hereditaments refer to the physical and tangible characteristics of land while incorporeal hereditaments refer to certain intangible rights which may be enjoyed in, over or in respect of land. Corporeal hereditaments include the land itself (the solum), including the soil and rocks which constitute the surface layer of the land, as well as such physical objects that are attached to or part of the ground. Corporeal hereditaments extend to buildings and other fixtures on the land, trees, crops and plants growing in the soil of the land, subjacent minerals and even some portion of the superjacent air space: K Gray and SF Gray, Elements of Land law, 4th ed, Oxford University Press, 2005, p 13 [1.24]-[1.25]. An incorporeal hereditament “is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses”: W Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1765 (reprinted Legal Classics Library, 1983), Vol 2, p 20, cited and applied by Cotton LJ in In re Christmas. Martin v Lacon (1886) 33 ChD 332 at 338-339. Examples of incorporeal hereditaments are easements and profits à prendre.

166 The reference in s 7 to “property on the land”, insofar as it refers to land, therefore, may be a reference to corporeal hereditaments (“things corporate”) rather than incorporeal hereditaments (“things collateral to things corporate”) and furthermore only to those corporeal hereditaments other than the surface layer of the land (the solum). If this be correct, the Trees (Disputes Between Neighbours) Act 2006 would apply to damage to physical and tangible property constituting corporeal hereditaments but excluding the surface of the land itself. Hence, damage caused by a tree’s roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour’s land, may be covered by the Trees (Disputes Between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006: N Foster, “Trees and Nuisance in New South Wales” (2007) 81 ALJ 291 at 292.”

38. While Pt 2 of the Trees Act refers to ‘land’ and ‘property on the land’, Pt 2A refers to ‘land’ and ‘dwellings situated on the land’. Clearly, ‘land’ includes the ground and rocks and other matter within the ground. From the definitions above, for the purposes of Pt 2A of the Trees Act, it may also include structures built on that ground.

39. Returning to the Strata Schemes Development Act, ‘common property’ within a strata scheme is defined at s 4 as “…any part of a parcel that is not comprised in a lot (including any common infrastructure that is not part of a lot).” And a ‘lot’ within a strata scheme is defined as:

…one or more cubic spaces shown as a lot on a floor plan relating to the scheme, but does not include any common infrastructure, unless the common infrastructure is described on the plan, in the way prescribed by the regulations, as a part of the lot.

40. Typically, the bottom boundary of each lot is the upper surface of the floor. The structure of the floor, and the ground below any ground-floor lot, are common property, unless shown otherwise on the strata plan (NSW land registry services: accessed 26 February 2025). Nothing in evidence indicates that the applicant’s strata plan shows anything different to this.

41. It follows that the ground (which is ‘land’) of the property adjoining that where the trees are situated, is land owned by the owners corporation. As the owner of the land, the owners corporation can apply for an order relating to a dwelling situated on the land (s 14B of the Trees Act). No other sections within Pt 2A of the Trees Act contradict this approach. I am satisfied that The Owners – Strata Plan No 52378 can make this application.

40. It must be noted that this does not exclude the alternative. As per the definitions of ‘land’ at [35] and [36] above, land may include the tenements and hereditaments corporeal and incorporeal on the land. Therefore, an owner of a lot within a strata scheme might be considered an owner of land. And at s 3 of the Trees Act, an “owner of land includes the occupier of the land”, so any occupier of a lot within a strata scheme is occupying the land and might also be considered an owner of land. If this is correct, an owners corporation can make an application pursuant to s 14B of the Trees Act relating to one or more dwellings within the strata scheme; equally, an owner or occupier of a dwelling (lot) within the strata scheme can make an application relating to that particular dwelling.

41. This is distinct from applications made pursuant to s 7 (Pt 2) of the Trees Act, where, on my reading of Pt 2, a lot owner can apply for an order relating to damage to property within their lot, while an owners corporation must apply for an order relating to damage to common property.

42. I find no error in The Owners – Strata Plan No 52378 making this application.

43. Despite this finding, I accept Ms Simms’ proposition that each of the four dwellings included in this application must be considered separately. In fact, as with any Pt 2A application, even those involving only a single dwelling, the Court must consider the sunlight obstructed to each window in the application and the view lost from each viewpoint in the application. The situation for each dwelling must be assessed on its own merits.

Whether the trees severely obstruct sunlight or views: s 14E(2)(a)

46. The four dwellings in this application are:

• Unit 1, on the lower ground floor, occupied by Jeanette Cornejo since November 2015;

• Unit 2, on the ground floor, owned by Julie and Antony Heath (as trustees of a trust) since 2015;

• Unit 3, on the ground floor, owned by Terrence Broomfield since 2020;

• Unit 6, on the second floor, owned and occupied by Scott Muller since 2015.

Unit 1

47. Jeanette Cornejo, the occupier of Unit 1, claims that trees in the hedge severely obstruct sunlight to, and views from, four north-facing windows: W1 in the eastern living room, W2 in a home office, and W3 and W4 to a bedroom. The application seeks the removal of trees T1–T9 on these grounds.

Evidence

48. Mr Williams inspected the site on 6 September 2023. In his report (Exhibit B), he identified all 21 trees as Leighton Green Cypress planted around 2009. He estimated trees T1–T9 were 4.5–5.5 metres tall, with their stems located 1.1–1.6 metres from the common boundary fence.

49. Mr Williams expressed the opinion that the trees would not be viable if pruned to fence height, being a height of 1.8 metres.

50. Two images attached to the application (Exhibit A, Annexure A, Images 1 and 2), taken inside the unit apparently in 2011, show sunlight coming through windows of Unit 1 and reaching the floor. These images lack time and date stamps. Images 3 and 4, taken outside the unit in June 2024, show the unit’s north-facing windows at 8:58 am and 3:15 pm, respectively.

Applicant’s submissions

51. In her affidavit, Ms Cornejo stated that the 2011 photos show the situation similar to the first winter she spent in Unit 1 in 2016, after moving into the unit in late 2015. She stated that winter sunlight and views were impacted within 2–3 years and that she effectively lost all winter sunlight through her north-facing windows from 2020 other than some early-morning light through her living room window (W1). Ms Cornejo stated that this resulted in mould growth in her unit and she has to use a dehumidifier during winter.

52. Mr Broomfield explained that the applicant did not obtain shadow diagrams as he thought the severity of the trees’ obstruction of sunlight and views would be apparent from the photographs and the Court’s site view. In particular, he relied upon the photographs of the unit’s exterior (Images 3 and 4 described above at [50]) to demonstrate the sunlight obstruction to all four affected windows of Unit 1.

53. Mr Broomfield conceded that expansive eastward views were available from Unit 1’s living room, but the north-facing window (W2) of the home office is that room’s only window. The trees entirely obstruct views from, and sunlight to, that window. He said that the trees were 500 mm above the top of the boundary fence in 2011, but they are now approximately 2 metres above the fence top.

54. Mr Broomfield submitted that the impacts to Unit 1 would be remedied and prevented from recurring if the trees were pruned to fence height. However, because Mr Williams found the trees would not be viable if so pruned, T1–T9 should be removed and any replacement planting should be limited to fence height.

Respondent’s submissions

55. Ms Simms submitted that Unit 1’s location on the lower ground level makes it difficult to protect views and sunlight across the applicant’s side boundary, which is just north of Unit 1. Ms Simms pointed out that only trees T1–T9 could possibly impact Unit 1, but the boundary fence extends upward to the midway point of Unit 1’s north-facing windows, so sunlight and views would only be available above that, regardless of the trees. Ms Simms opined that the date of Images 1 and 2 is unclear, but regardless, they demonstrate that W1 received only limited sunlight before the trees grew. She said the applicant has provided no evidence regarding the sunlight access to W3 and W4 in 2011. As for Images 3 and 4 showing the external wall, Ms Simms said that sunlight can be seen on W1 at 8:58 am. There are no images showing the situation between 9:00 am and 3:00 pm, so the Court should not rely on these images to show the full situation. A photograph taken by Mr Williams (Exhibit B, Appendix 6, Image 1) two weeks before the trees were pruned in September 2023 shows some sunlight coming through W1.

56. Regarding the view obstruction, Ms Simms argued that the living room has its primary view through its large east-facing window. That expansive water view diminishes the impact of any obstruction the trees may cause of a view from W1. The lower part of any view from W2 is obstructed by the fence and, while the trees might obstruct the view above that, it does not seem to be any significant view. Views from W3 and W4 are from a bedroom and present a comparable situation to W2.

Findings

57. My own observations during the onsite hearing confirmed many of the submissions made by both parties:

• Unit 1’s location on the lower ground level makes it more difficult to maintain access to sunlight and views across the northern side boundary;

• The principal view for the living room, and for the overall unit, is the expansive water view through the large east-facing window;

• Photographic evidence of the trees’ impact on sunlight throughout the day is limited;

• The trees obstruct morning and afternoon sunlight during winter, especially to windows W2–W4.

58. In assessing the extent of the view obstruction, I rely on the qualitative terminology used by Roseth SC when considering the principles of view sharing at [28] in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140: negligible, minor, moderate, severe or devastating. The same terminology can appropriately be used to describe the extent of sunlight obstruction. I find the view obstruction caused to these windows by the trees is less than severe for the following reasons. The boundary fence obstructs the lower part of the view from W1–W4. The view above the fence includes some more distant parts of the landscape to the north that would be easily obstructed by any other landscape element in Ms Huang’s garden.

59. I find the trees’ obstruction of sunlight to these windows is severe for the following reasons. Windows W1–W4 are all of the unit’s north-facing windows, so the impact of sunlight obstruction during winter is greater than for other windows. Morning sunlight during winter can enter the living room through the large east-facing window, but afternoon sunlight can only enter that room through W1, while W2–W4 provide the only sunlight access to the home office and bedroom. Foliage of T1–T9 forms a dense wall that rises up to two metres above the fence only a short distance from W1–W4. The visual impact is significant and the obstruction to winter sunlight would be severe. Given the circumstances, Ms Cornejo’s description of the impacts to her during the period she has occupied Unit 1 seem reasonable and unexaggerated. An aerial image from 2009, included in Mr Williams’ report, shows the trees to be small circles of foliage, rather than a continuous wall of foliage along the boundary, confirming Mr Williams’ conclusion that the trees were likely planted in 2009. If maintained as a hedge, as they appear to have been for some time, Ms Cornejo’s statement that she enjoyed abundant sunlight in 2016 is credible. The trees’ current and ongoing obstruction of that sunlight is severe.

Unit 2

60. Julie and Antony Heath, who have owned Unit 2 since 2015, claim that trees T10–T19 severely obstruct the view from their living area windows W8 and W9. The application seeks orders for T10–T19 to be pruned to, and maintained at, a height 500 mm below the top of a black steel balustrade outside Unit 2.

Evidence

61. Mr Williams estimated T10–T19 to be 4.0–4.5 metres tall. Mr Williams’ photographs (at Appendix 5 of his report) show the tops of the trees reaching up to the midpoint of windows W8 and W9. The trees are separated from the windows by a walkway on the applicant’s property, with the black steel balustrade running along the walkway’s edge close to the common boundary.

62. Mr Williams’ photographs taken from within Unit 2 (Images 7 and 8 of Appendix 6 of his report) show the trees obstructing the landscape view through the lower half of the sash windows.

63. Mr Williams expressed the opinion that T10–T19 could be successfully pruned and maintained at a height 500 mm below the top of a black steel balustrade outside Unit 2.

Applicant’s submissions

64. Mr Broomfield submitted that T10–T19 have grown to severely obstruct the view during the Heaths’ ownership of Unit 2. While the view is across a side boundary, Unit 2 has only north-facing windows, unlike Unit 1 which is at the eastern end of the building, so this is the unit’s primary view. The photographs in Mr Williams’ report show the obstruction is severe.

Respondent’s submissions

65. Ms Simms submitted that Unit 2 is on the ground floor and its only views are to the north across the property’s side boundary, being more difficult to protect than views to the front or back of a property. The obstruction results as much from the design of the applicant’s building as it does from landscape elements. Regardless of this, the trees were pruned in September 2023, two weeks after Mr Williams’ inspection, yet Mr Heath refers in his affidavit sworn in October 2024 to the obstruction shown in Mr Williams’ report rather than the current situation. Ms Simms argued that this suggests there is now no severe obstruction.

66. Ms Simms submitted that the applicant’s black balustrade obstructs the lower part of the view, above which only Ms Huang’s garden might be seen.

Findings

67. On the day of the hearing, I observed the view through both W8 and W9 and found that a significant part of the landscape view remained through W8, such that I would not consider the trees’ obstruction to be severe. I accept that Mr Williams’ photograph of this window shows the trees’ obstruction of the view from W8 was greater in September 2023. I observed that the trees impacted more significantly the view through W9, such that the obstruction was more than moderate, and therefore severe. Unit 2 has no other windows providing a view so this north-facing view is the unit’s principal view.

Unit 3

68. Mr Broomfield purchased Unit 3 in 2020, at which time he says he had unobstructed water and landscape views through his north-facing windows: W5 in his dining room, W6 in his kitchen, and W7 in his home office. Due to the view obstruction that developed as the trees grew, the applicant seeks the removal of trees T1–T9.

Evidence

69. Mr Williams’ photographs (at Appendix 6 of his report) show: an expansive view through W5, the wide dining room windows; the tops of the trees obstructing only the lower part of the view through W6; and the trees obstructing most of the landscape view through W7.

70. Unit 3 is directly above Unit 1, so W5–W7 are directly above W1–W3 respectively. Mr Williams evidence regarding trees T1–T9 is summarised earlier under Unit 1.

Applicant’s submissions

71. Mr Broomfield made little in the way of submissions on Unit 3, saying that if the Court makes the orders sought for Unit 1, Unit 3 will get the benefit. During the Court’s observations of W5–W7, Mr Broomfield said the trees’ obstruction of his views was worse before the September 2023 pruning event.

Respondent’s submissions

72. Ms Simms submitted that Unit 3’s principal view is the extensive water view through the large east-facing living room window. As for Unit 1, only trees T1–T9 could have any impact on the unit’s north-facing windows. Mr Williams’ photographs show the view obstruction for W5–W7 was not severe even before the September 2023 pruning event, which Mr Broomfield conceded restored the views. A photograph taken by Ms Huang in September 2024 (Exhibit 1, Annexure A) shows the trees did not obstruct the views from Unit 3’s windows.

Findings

73. Relying on my own observations, the trees’ obstruction of the views from W5–W7 was not severe on the day of the hearing. If the obstruction was severe prior to the pruning in 2023, the evidence does not demonstrate this. The Court cannot be satisfied that T1–T9 cause a severe obstruction of a view from these windows.

Unit 6

74. Unit 6 is over two floors at the building’s western end, with both north-and west-facing windows. Scott Muller, who has owned the unit since 2015, claims that trees T20 and T21 severely obstruct the view from his lower-floor bathroom and main bedroom windows (W10 and W11, respectively) on the building’s second floor. The application seeks orders for these two trees to be pruned and maintained at a level equating to the mid-point of W11.

Evidence

75. Mr Williams estimated T20 and T21 to be 7.5–8.0 metres tall. His photographs taken from within these two rooms (Images 9 and 10 at Appendix 6 of his report) show the trees’ foliage blocking the northward view through the lower parts of W10 and W11. Mr Williams expressed an opinion that T20 and T21 could be successfully pruned and maintained at the height proposed by the applicant.

76. Mr Muller attached to his affidavit his own photos taken through W10 and W11 in September 2024 (Exhibit F, Annexures B and C). His photos show a wall of foliage, within a metre or so of the windows, almost entirely obstructing the view. An earlier photograph (Exhibit F, Annexure A), apparently forming part of marketing material before his purchase of the unit in 2015, shows an unobstructed ‘north-facing view from Unit 6 prior to tree growth’, but the photograph lacks further information such as its date and from where it was taken.

77. Ms Huang included at Annexure B (Exhibit 1) to her affidavit a photograph she took near the middle of the day on 18 September 2024. She stated that, based on her observations, T20 and T21 do not severely obstruct sunlight or views for W10 and W11.

Applicant’s submissions

78. Mr Broomfield submitted that the photographs in evidence, along with the Court’s onsite observations, would satisfy the Court that the trees severely obstruct the view from W10 and W11. He conceded that the affected rooms are a bathroom and bedroom, while expansive views are available to the north and west from the unit’s upper-floor living area, but the view from W10 and W11 are important to Mr Muller’s enjoyment of his property. They provide the only water views for Unit 6.

79. Mr Broomfield submitted that T20 and T21, which were not pruned in 2023, would tolerate the proposed pruning as Mr Williams stated in his report.

Respondent’s submissions

80. Ms Simms submitted that Unit 6 enjoys substantial views from its upper-floor living area, to the north and west, with the westward view including the Harbour Bridge. The views from W10 and W11 are not the unit’s principal views. The bathroom window (W10) is frosted glass, allowing a view only when it is open. The applicant’s photographs showing a view obstruction of this window are taken from within the bathroom looking slightly west of north, but if one stands at W10, a water view is still available to the northeast. It is that view to the northeast that is shown in the 2015 marketing photograph. For these reasons, Ms Simms submitted, the trees cause no severe view obstruction to Unit 6.

81. Ms Simms suggested that, if any orders are made for pruning T20 and T21, these two trees should be treated as a separate hedge because they are separate from, and taller than, the other 19 trees.

Findings

82. During the onsite hearing, I observed the outlook from W10 and W11. I find the trees cause a severe obstruction to the view from the bedroom window (W11). I generally accept Ms Simms’ submissions in regard to the following:

• The 2015 photograph shows a water view to the northeast that is still available when one stands at W10;

• The applicant’s photographs showing the view obstruction are taken at an angle to accentuate the obstruction and do not show the entire situation;

• Extensive views are available from the upper-floor living area.

83. Considering the view that remains from W10 if one stands at the bathroom window, I find it is not severely obstructed by the trees.

84. However, the view from the bedroom’s W11 is severely obstructed by T20 and T21. I include below two relevant photographs showing the outlook from W11. 

Figure 1: Photographs looking out through W11, from Mr Williams’ report (left) and Mr Muller’s affidavit (right).

85. As Ms Simms suggested, T20 and T21 should be treated as a distinct hedge, separate from the hedge made up of T1–T19.

Summary of findings on severity

86. Having considered the relevant evidence and submissions, I am satisfied that:

• Trees T1–T9 are severely obstructing sunlight to (but not views from) windows W1–W4 in Unit 1;

• T10–T19 are severely obstructing a view from W9 (but not W8) in Unit 2;

• T1–T9 are not severely obstructing a view from Unit 3;

• T20 and T21 are severely obstructing a view from W11 (but not W10) in Unit 6.

Whether the applicant’s interests outweigh other matters

87. Before making any order, the Court must be satisfied that “…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”: s 14E(2)(b) of the Trees Act. In balancing these factors, I have considered all matters at s 14F and discuss below those that are most relevant.

Location of the trees

88. The trees are close to the common boundary shared by the parties. Although they were planted a metre or more from the boundary, their foliage spreads to or even across the boundary, forming a dense screen only a metre or so from the windows in this application. The trees’ proximity to the applicant’s building contributes significantly to their impact on the affected dwellings’ owners and occupiers.

Timeline of the trees

89. The trees were planted in or shortly before 2009. The applicant’s building, its dwellings and windows all existed at that time. The trees have grown to obstruct views and sunlight that were available for these windows. The trees were likely to be taller than 2.5 metres at the time that owners (or occupiers) came to the four relevant dwellings, but on the evidence before me it seems that the obstruction became severe (where I have found the obstruction to be severe) during the period they have owned or occupied their dwellings. That the dwellings’ owners and occupiers have lost access to sunlight or views weighs in their favour.

Consent requirements

90. In the North Sydney Local Environmental Plan 2013 (‘LEP’), Ms Huang’s dwelling is identified at Sch 5 as an item of local heritage significance within a heritage conservation area. At cl 5.10(2) of the LEP, development consent is required to demolish or move (but not prune) a tree within a heritage conservation area. At cl. 5.10(3), consent is not required if the work is of a minor nature for the purpose of maintaining a tree and would not adversely affect the heritage significance of the relevant heritage item or heritage conservation area. Planted in 2009, the trees are not part of the heritage significance of the dwelling or the Kurraba Point heritage conservation area, nor is there any evidence to suggest that they were planted to replace a hedge that contributed to any heritage significance.

91. Under the North Sydney Development Control Plan 2013 (‘DCP’), any tree that is 5 metres or more in height, or has a crown width of 5 metres or more, or a stem circumference of 500 mm or more, is declared vegetation for the purposes of the DCP. It seems likely that only T20 and T21 would currently meet those criteria. Under Section 16, Part 2 of the DCP, a permit is not required for “maintenance pruning of hedges: (i) where the hedge is less than 5m in height; or (ii) where the hedge is 5m or greater in height, but only where all work is undertaken in accordance with the Australian Standard for Pruning of Amenity Trees (AS 4373-2007) and must be conducted by a qualified Arborist (minimum AQF Level 3).” To my mind, none of the consent requirements in either the LEP or the DCP would weigh against making the orders the applicant seeks.

Benefits of the trees

92. The trees do not seem to contribute to the heritage value of Ms Huang’s property. They have no historical, cultural, social or scientific value and make no significant contribution to the local ecosystem and biodiversity. They make little contribution to public amenity.

93. The trees contribute to the landscape of Ms Huang’s property. At par 9 of her affidavit, Ms Huang stated: “The trees play a vital role in the landscaping and garden design of the Property, significantly enhancing its aesthetic appeal and contributing to its leafy character, which was one of the key factors in my decision to purchase the Property.” Mr Broomfield questioned Ms Huang on how much she might value the trees, pointing out that within 12 months of purchasing her property in 2022, Ms Huang lodged a development application in March 2023 that included the removal of all trees in the back part of her property, including T1–T21, and the installation of a pool. Although North Sydney Council (‘Council’) refused the application, Ms Huang subsequently removed all trees in the rear of her property other than T1–T21 without a permit and then received a fine from Council. Mr Broomfield suggested that this shows trees on her property have little value to Ms Huang. Despite this history, Ms Huang stated that she maintains her appreciation of the trees’ aesthetic value. The trees screen the applicant’s building, softening the landscape. They do contribute to the aesthetic value of her property such that the property would be significantly different without them.

94. The trees provide no significant contribution to soil stability, the water table or other natural features of the land.

95. Ms Simms submitted that the trees provide privacy to Ms Huang’s property, particularly T20 and T21, which provide some screening between Mr Muller’s windows (and I assume windows of other units directly below) and Ms Huang’s patio and bedroom. Mr Muller stated in his affidavit that pruning those trees as proposed would maintain most of that privacy. Mr Broomfield submitted that other units that are not screened by T20 and T21 face the same parts of Ms Huang’s property, so she has no real privacy. I find that while the trees may give the impression of some limited privacy, several other units face the back part of Ms Huang’s property such that pruning T20 and T21 as proposed would have negligible impact on her privacy.

Impacts of pruning

96. I accept Mr Williams’ evidence that pruning T1–T9 to fence level would adversely impact those trees to the extent that they would no longer be viable or attractive in the landscape. Ms Simms submitted that Mr Williams should be questioned on what height reduction T1–T9 would tolerate, as something above fence height might restore sufficient sunlight. However, in my view, anything greater than fence height will continue the severe sunlight obstruction to W1–W4, especially when regrowth between pruning intervals is considered. If the trees’ obstruction of sunlight to Unit 1 is to be remedied, T1–T9 would need to be removed. T10–T21 could be maintained as the applicant proposes without adverse impacts.

97. Trees of this species grow quickly. Without pruning, the extent of sunlight and view obstruction will increase, perhaps affecting other windows. Without regular maintenance, any remedy of the current obstruction would soon be lost. The applicant proposed an order that T10—T21 be pruned every 9 months to maintain them at the desired heights. When questioned as to this frequency, Mr Broomfield explained that Mr Williams’ recommended maintenance pruning on a “6 month to annual frequency”, so the applicant thought a 9-month frequency would be reasonable, being halfway between the two. To my mind, if any order is made for regular maintenance of the trees’ height, annual pruning would suffice and, if done at the beginning of winter, would provide the greatest relief for any sunlight obstruction.

Other elements contributing to the obstruction

98. The paling fence on the common boundary contributes to the view obstruction from Unit 1, but I found the trees do not severely obstruct a view from Unit 1. If the trees were absent, the fence would not obstruct sunlight to Unit 1’s windows. The balustrade outside Unit 2 is made up of vertical steel slats that allow the northward view from the unit’s windows. Where I have found the trees severely obstruct sunlight or views, no other structural or landscape elements contribute meaningfully to the obstruction.

Actions of the parties

99. The applicant has attempted to negotiate with Ms Huang to achieve a suitable agreement. Ms Huang engaged a contractor to prune the trees in September 2023, but had not done so again 12 months later. The parties corresponded, offers were made but the parties were unable to reach any agreement. When questioned during the hearing, Ms Huang stated that she intended to regularly prune and maintain the trees. She would prefer to reach an agreement rather than have Court orders binding her or a subsequent owner of her property. But that opportunity has now passed. Based on the history here and the poor nature of the relationship between the parties, I find her statement might be well intended but cannot be relied upon. Court orders are likely required to ensure the trees are regularly and punctually maintained.

Nature of the obstruction

100. The applicant provided no shadow diagrams, but relying on the limited evidence, my own observations, and common knowledge of the sun’s movements during a day and throughout the year, it seems that T1–T9 obstruct sunlight to Unit 1’s four north-facing windows for most of the daylight hours during winter. The trees are evergreen and provide a dense wall of foliage close to these windows. The windows include the living room and a home office, both of which are likely to be used throughout the day. The impact to the occupier, especially during winter, is significant.

101. Unlike Units 1 and 3, which are at the building’s eastern end with water views through large east-facing windows, Unit 2 has only smaller, north-facing windows. Windows W8 and W9 are in the unit’s living area. A view remains through W8, but the severe obstruction of the view from W9 impacts the living area sufficiently to justify orders to remedy and prevent the obstruction.

102. At Unit 6, the severely obstructed window W11 is to the main bedroom. Other more extensive views are available from the unit’s living areas. Nevertheless, the proximity of the trees’ dense foliage severely affects the bedroom’s amenity. The proposed remedy is reasonable, with the gains to the unit’s occupier far outweighing any minor impacts of the proposed pruning to the respondent.

Summary

103. As a result of the above, I find the proposed orders would provide a reasonable remedy to the trees’ obstruction of sunlight and views. The benefits to the owners and occupiers of Units 1, 2 and 6 significantly outweigh any reasons to avoid interfering with the trees or to order anything less than what the applicant proposed. T1–T19 form a single hedge, but only T1–T9 require removal. For as long as T10–T19 remain, they should then be maintained as a single hedge. As per the applicant’s proposed orders, the height of any hedge planting to replace T1–T9 should be restricted. For as long as T20 and T21 are retained, they should also be maintained as a single hedge. Ms Huang is not required to obtain Council’s consent for the tree works ordered below: s 6(3) of the Trees Act.

Orders

104. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and appropriately insured arborist to remove trees T1–T9 (as identified in this judgment) to ground level within 60 days of the date of these orders.

3. Any further hedge planting in the area occupied by T1–T9 must not exceed 1.8 metres in height, or the height of the paling fence on the common boundary.

4. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and appropriately insured arborist to carry out the following works in May of each year, beginning in May 2025, for as long as the trees remain:

1. Prune trees T10–T19 (as identified in this judgment) to a height no greater than 500 mm below the top of the black metal balustrade outside Unit 2 (shown in Image 4 on p 11 of Mr Williams’ report, copied below these orders, with arrow and notation added);

2. Prune trees T20 and T21 (as identified in this judgment) to a height no greater than the mid-point of window W11 (as identified in this judgment).

5. All tree works in the above orders must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

6. The respondent is to give the applicant at least two days’ notice of all works ordered above.

7. The applicant is to allow any access to its property during reasonable hours of the day to complete the works, including cleaning up of debris.

8. The exhibits are returned, other than exhibits A and B.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 06 March 2025