Arnold v Nagy
[2021] NSWLEC 1480
•13 April 2021
Land and Environment Court
New South Wales
Medium Neutral Citation: Arnold v Nagy [2021] NSWLEC 1480 Hearing dates: 13 April 2021 Date of orders: 13 April 2021 Decision date: 13 April 2021 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that:
(1) The respondent shall, at her expense, poison and remove all bamboo growing behind the common rear fence, growing under this fence, and growing in the applicant’s rear yard.
(2) The respondent shall, at her expense, remove all bamboo roots from under the base of the common rear fence line to a minimum depth of 150mm, remove all refuse and tidy.
(3) The respondent shall, at her expense, remove all bamboo roots in the applicant’s property to a minimum depth of 300mm, remove all refuse and tidy.
(4) The respondent shall, at her expense, replace at least five panels in the common rear fence on a like for like basis, paint fence so as to match existing colour, and remove all refuse.
(5) The respondent shall, at her expense, replace at least one panel in the common side fence on a like for like basis, paint fence so as to match existing colour, and remove all refuse.
(6) The respondent shall, at her expense, restraighten and reinforce both fence lines from her side.
(7) Should any bamboo regrow under the fence line, or in the applicants property, the respondent shall, at her expense, poison and remove it within 30 days of receipt of written notification from the applicant.
(8) Where access is required to complete these works, the applicant shall provide access to the respondent, upon receipt of no less than 48 hours written notice of date and approximate time of works.
(9) The works shall take place during normal working hours.
(10) All tree works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(11) All works shall be completed within 180 days from the date of these orders
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property
Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12, 14
Uniform Civil Procedure Rules 2005, r 7.16
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
McLeod v Bruce [2010] NSWLEC 1322
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited: Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category: Principal judgment Parties: Lyndall Arnold (Applicant)
Gabor Nagy (First Respondent)
Barbara Nagy (Second Respondent)Representation: L Arnold (Litigant in person) (Applicant)
G Nagy (Litigant in person) (First Respondent)
B Nagy (Litigant in person) (Second Respondent)
File Number(s): 2020/322721 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Ms Arnold, the applicant, and Mr and Mrs Nagy, the respondents, live in Blakehurst, a southern Sydney suburb. The Nagy’s property is a battle-axe block, located behind Ms Arnold’s property. The properties share two boundaries, one of which is the applicant’s rear boundary, and the applicant’s side boundary, beyond which is the respondents’ driveway.
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Ms Arnold submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking removal of bamboo, and other plants, insertion of a root barrier, and replacement of fences, which she claims have been damaged by the bamboo, or other plants.
On site hearing
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The hearing took place on 13 April 2021. Ms Arnold and Mr and Mrs Nagy were present, along with relatives of the respondents. Mrs Nagy had been granted consent of the Court, under Uniform Civil Procedure Rule 2005 r 7.16, to act as Mr Nagy’s tutor.
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The applicant’s property was inspected first. The common side fence exhibited distortion and damage in at least one panel. At least five panels in the common rear fence were distorted and/or lifted and/or damaged. The source of this damage appeared to be bamboo, which had encroached under the fence from the respondents’ property, and was growing in the narrow garden bed between the fence and timber decking, and in amongst brick pavers.
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Subsequently, the bamboo was inspected from the respondents’ property. Bamboo is defined as a tree under the Act. Two large clumps were growing in a narrow garden bed between the common fence (the applicant’s rear fence), and a swimming pool, along with additional culms which had emerged from rhizomes spreading along the garden bed.
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Upon viewing the applicant’s side fence from the outer side, being the respondents’ driveway, the areas of fence distortion were immediately adjacent to areas of disturbed soil, from which two large plants, a Montera deciciosa and a Strelitzia nicholii (Bird of Paradise), had recently been removed.
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The applicant seeks the following orders:
Removal of all bamboo and root system to allow dismantling of damaged fence, installation of bamboo barrier to prevent future potential invasion of any existing rhizomes into the applicant’s property, and erection of new fencing as per quotation from Burraneer Fencing.
Removal of Bird of Paradise and Monstera deliciosa and replacement of side fencing which has been damaged through close proximity of the offending plants.
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Onsite, the applicant also claimed that sheaths from the bamboo culms fall and cause mess in her pool, and maintenance impost to rectify.
Jurisdictional requirements
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With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
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The Court’s ability to make orders is limited, at s 10 of the Trees Act.
10 Matters of which Court must be satisfied before making an order
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
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If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12. The record of correspondence and conversations between the parties, including that Ms Arnold, on various occasions, unsuccessfully sought mediation with the respondents through a Community Justice Centre, displays that she has made reasonable effort to reach agreement. Therefore, I am satisfied that the requirements of s 10(1)(a) have been met, and thus the principal jurisdictional test in this matter is at s 10(2).
Damage to fences
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I am satisfied that the damage to the side fence has been caused by the Montera deciciosa and Strelitzia nicholii. The respondent acknowledged this on site, the location of fence damage is immediately adjacent to the locations from which these plants were removed, and high quality photographic evidence submitted by the applicant, displayed the large size and location of these plants, prior to their removal. I am also satisfied that the Strelitzia nicholii, at least, satisfies the requirements under the Act, to be deemed a tree.
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The bamboo growing along and closely adjacent to the applicant’s rear fence, which was initially planted in the respondents’ property, is clearly the cause of past and current fence damage. This is a variety of ‘king’ bamboo, with tall arching culms reaching a height of about 10 metres, and a diameter of about 6 cm. Some culms are pressing heavily against the fence, distorting it, and this is likely to be exacerbated during heavy winds, where the bamboo would likely sway significantly. Other bamboo growth is clearly evident under the fence, resulting in vertical distortion, as well as through the bottom of the fence, after breaking through the solid fence sheeting. Many invasive culms have been cut near ground level from garden beds and around rocks in the applicant’s property, but the dense mass of residual roots, and some new emerging stems, remain.
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Mrs Nagy noted in her affidavit, that this was a clumping bamboo variety, which she had been advised, was not invasive. While this is a ‘clumping’, rather than a ‘running’ form of bamboo, and clumping forms would normally be viewed as having less tendency to ‘escape’, because it is a large variety, planted in a narrow garden bed, tight against the boundary, it has nonetheless grown into the applicant’s property. The remedy suggested by Mrs Nagy, of ‘simply’ kicking off the new emerging culms near ground level, is not an adequate or suitable remedy for this encroachment.
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Overall, from evidence adduced on site, and from the photographs provided, I am satisfied that the bamboo is the cause of damage to the applicant’s rear fence, and surrounding surfaces, that the Montera deciciosa and the Strelitzia nicholii were the cause of side fence damage, and, therefore, that s 10(2) of the Act is engaged.
Falling debris
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To support her claim, the applicant also noted the issue of ongoing maintenance required to clean up bamboo refuse continuously dropping into her pool, garden and surrounding surfaces.
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In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, Preston CJ states that this is not “damage to property on the land” within s 7 of the Act, and that:
“leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”
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The issue of the maintenance impost from falling leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle:
“…
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”
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As with all similar previous cases, the submission with respect to leaves and other refuse, on the ground or into the pool, does not invoke the Act’s jurisdiction.
Section 12 considerations
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As s 10(2) of the Act is, however, engaged by the fence damage as a result of the bamboo, and other plants, the Court must consider a range of matters set out at s 12.
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The bamboo is located close, and parallel to the shared fibre board and timber lattice boundary fence, which is the applicant’s rear boundary. The bamboo rhizomes have grown under the fence, and stems from it have in the past, and are currently, growing from these rhizomes. The Monstera and Strelitzia, removed prior to the hearing, were also growing close to the applicant’s side fence (subs 12(a)).
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Interference with the bamboo would not, in the absence of s 6(3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 (subs 12(b)).
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Subsection 12(b2) considers the impact any pruning would have on the bamboo. While the bamboo could be thinned out, and the individual culms could be reduced in length, with little negative impact of the residual clumps, neither of these options are likely to remedy the likelihood of damage continuing in the near future.
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The respondents submitted that the bamboo contributes to their privacy, particularly to their bedroom, and Ms Arnold noted that on various occasions Mrs Nagy had suggested it helped to “purify the air” (subs 12(b3)). It is likely to also contribute to the respondents’ garden design, and protection from the sun, and from wind.
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The bamboo makes little contribution to the local ecosystem and biodiversity, or intrinsic value to public amenity (subss 12(d), (f)).
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Subsection 12(h) says,
if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:
(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant…
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In this respect, the age and nature of the structure should be considered. A certain amount of wear and tear is expected to arise with any structure over time. The Court considers these matters when determining the extent to which a tree may or may not have caused the alleged damage, and in determination of replacement, repair and/or compensation. For an example of a fence issue, see McLeod v Bruce [2010] NSWLEC 1322.
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The existing fences are almost twenty years old, presuming that they were constructed in conjunction with the applicant’s dwelling. While they still appear to be impressive solid fences, it is reasonable to expect a certain level of deterioration, and wear and tear to have occurred across this period, of almost two decades. Accordingly, orders made for fence replacement or repair will take account of this reasonable wear and tear, such that replacement with a new fence, entirely at the respondents’ expense, is an unreasonable expectation.
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Overall, the benefits provided by the bamboo do not exceed the imperative to take measures to prevent further fence damage, as a result of the bamboo, and to make orders to redress the fence damage, already incurred.
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The respondents, being aged in their 80’s and 90’s, noted financial hardship in their capacity to pay for fence replacement. While this, of itself, is not a reason not to make appropriate orders, it did inform discussion as to resolution of the applicant’s problem. Rather than insert a root barrier to prevent further bamboo rhizome encroachment into the applicant’s property, all bamboo within both parties’ properties shall be removed and poisoned, along with all residual live or dead roots within the applicant’s property, and any future regrowth. Once completed, new fence panels shall be installed, on a like for like basis.
Conclusion
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I have examined the site and have reached the following conclusions:
I have concluded that the respondents’ bamboo is the primary cause of damage to the applicant’s rear fence, and surrounding surfaces, that the respondents’ large Monstera and Strelitzia caused damage to the applicant’s side fence, and that the jurisdiction of the Act is therefore engaged.
The benefits from the bamboo are insufficient to justify not making orders to remedy damage to the applicant’s property, as a result of these ‘trees’.
Though there is no resolution of the applicant’s leaf fall issue available under Act, because of the tree dispute principle established in Barker v Kyriakides, this will coincidentally be achieved by the bamboo removal.
Orders
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The Court orders that:
The respondent shall, at her expense, poison and remove all bamboo growing behind the common rear fence, growing under this fence, and growing in the applicant’s rear yard.
The respondent shall, at her expense, remove all bamboo roots from under the base of the common rear fence line to a minimum depth of 150mm, remove all refuse and tidy.
The respondent shall, at her expense, remove all bamboo roots in the applicant’s property to a minimum depth of 300mm, remove all refuse and tidy.
The respondent shall, at her expense, replace at least five panels in the common rear fence on a like for like basis, paint fence so as to match existing colour, and remove all refuse.
The respondent shall, at her expense, replace at least one panel in the common side fence on a like for like basis, paint fence so as to match existing colour, and remove all refuse.
The respondent shall, at her expense, restraighten and reinforce both fence lines from her side.
Should any bamboo regrow under the fence line, or in the applicants property, the respondent shall, at her expense, poison and remove it within 30 days of receipt of written notification from the applicant.
Where access is required to complete these works, the applicant shall provide access to the respondent, upon receipt of no less than 48 hours written notice of date and approximate time of works.
The works shall take place during normal working hours.
All tree works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
All works shall be completed within 180 days from the date of these orders.
………………………
J Douglas
Acting Commissioner of the Court
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Decision last updated: 20 August 2021
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