Barbalace v Solomons

[2021] NSWLEC 1402

Land and Environment Court

New South Wales

Medium Neutral Citation:

Barbalace v Solomons [2021] NSWLEC 1402

Hearing dates:

11 March 2021

Date of orders:

11 March 2021

Decision date:

11 March 2021

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house.

(2) The respondents, at their expense, shall maintain the height of the bamboo hedge, so that at no time in the future, shall the hedge exceed the height specified in Order (1).

(3) The respondents, at their expense, shall maintain the bamboo hedge, so that at no time after 30 days of the date of these orders, shall it grow beyond the current boundary fence line, within the applicant’s property.

(4) All pruning works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) Should access be required to remove any refuse which falls into the applicant’s property, the applicant shall grant the respondents access, upon receipt of at least 24 hours written notice.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – branches near electricity service wire

Legislation Cited:

Civil Procedure Act 2005, s 64

Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006, s 7, 9, 10, 12, 14

Uniform Civil Procedure Rules 2005

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285

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

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

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

Category:

Principal judgment

Parties:

Antonio Barbalace (Applicant)
Chris Solomons (First Respondent)
Lily Swanston (Second Respondent)

Representation:

A Barbalace (litigant in person) (Applicant)
C Solomons (litigant in person) (First Respondent)
L Swanston (litigant in person) (Second Respondent)

File Number(s):

2020/356030

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Mr Barbalace, the applicant, and Mr Solomons and Ms Swanston, the respondents, live in Marrickville, a suburb in Sydney’s inner western region. They share a side boundary fence, with the applicant’s property located north of the respondents’. Both blocks, like the majority nearby, are relatively small, and it is common in this area for trees to encroach on neighbouring properties.

2. The subject of the dispute is a deciduous Magnolia tree in the respondents’ front yard (the tree), and a row of clumping bamboo (the bamboo), planted close to the common boundary in the respondents’ rear yard.

3. Mr Barbalace submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking heavy pruning of a row of bamboo and intervention with the tree, and also pursuant to s 14A of Part 2A of the Act, where the bamboo is assessed as a hedge.

On site hearing

4. The tree was inspected first. It is a mature small tree, well suited for its location. Some small branches are growing close to the respondents’ electricity service wire. Subsequently, the bamboo was inspected from both properties, prior to submissions by the parties.

5. An initial procedural issue arose as Antonio Barbalace is the applicant, but the property is owned by his brother, Pasquale Barbalace, for whom Antonio Barbalace has been granted Enduring Power of Attorney.

6. Under s 64 of the Civil Procedure Act 2005, and s 7.14 of the Uniform Civil Procedure Rules 2005 (UCPR), Antonio Barbalace may rely on this Power of Attorney to provide him with the agency to act on his brother’s behalf, as his tutor. Papers confirming the Enduring Power of Attorney were submitted in the pre hearing documentation. The respondents verbally acknowledged understanding of this situation, and willingness to continue with the hearing, and thus the Court ordered that the hearing proceed.

7. The applicant seeks the following orders;

1. “We ask that these branches of the bamboo will be kept to a reasonable height so that it doesn’t cause any more damage to our property.”

They also note making the application “to prevent injury to any person”.

8. In his Tree Dispute Claim Details, the applicant claims that the bamboo branches fall and cause rubbish and potential injury, that the bamboo moving as a unit under the force of high winds could potentially break the fence, and that the bamboo has damaged the timber frame which they built to prevent bamboo encroachment, and caused damage to their television antenna.

9. A letter sent to the respondents on 10 November, 2020, by Mr John Fisicaro, Solicitor, on behalf of the applicant, notes that “my client requests that you remove the bamboo or alternatively cut it to a height of 1 metre above the fence”.

10. Additionally, Mr Barbalace notes that power service lines are running to the respondents’ house through the tree in their front yard, and that high winds could damage the wires attachment to the house.

11. The applicant also seeks compensation of $1100, comprising $600 for an insurance claim excess, and $500 for photos, videos and solicitor’s fees for case preparation. He seeks the Court to decide if he should be awarded compensation for time lost and stress caused through proceedings under the Act.

12. The respondents, in their submission dated 1^st March 2021, note that their clumping bamboo is contained in a planter box and that it is pruned and trimmed regularly. They acknowledge that the bamboo sways in the wind, but claim that it is upright and does not have overhanging branches in the applicant’s property. They claim it has not damaged the dividing fence.

13. The respondents claim that the timber frame attached to the fence by the respondent to prevent bamboo encroachment, did not have Engineering Certification of a Development Application, and failed to comply with the then Marrickville Council’s (Council’s) Development Control Plan (DCP 2011). They also claim that the applicant’s rear deck exceeds the size approved under Building Application No. 39/93, and extends close to their property. They allege that this causes loss of privacy, and that the illegal deck extension makes it necessary to “have a high hedge to ensure our amenity and privacy”.

14. The respondents seek the following alternative orders;

1. The applicant is to reinstate the balcony in accordance with the Building Application No. 39/93.

2. The applicant is to remove the CCTV camera that is directed into the respondents’ property.

3. The respondents are to retain the bamboo.

4. The inspection and maintenance of the branches of the tree near the insulated electricity service wire, be left to Ausgrid.

5. The applicant’s claim for compensation be dismissed.

Jurisdictional requirements

15. 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.

16. 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.

17. 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 Mr Barbalace unsuccessfully sought mediation with the respondents through a Community Justice Centre, displays that he has made reasonable effort to reach agreement. Therefore the principal jurisdictional test in this matter is at s 10(2).

Damage to television antenna

18. The respondents claim that the television antenna was already damaged and rusty, that they maintain the bamboo regularly, and that they should not be liable for damage. Notwithstanding this, the bamboo spans a garden bed about ten metres long, and is about seven metres tall. Contrary to the respondents’ submission, during heavy winds it would likely sway significantly, and contact the applicant’s dwelling. From evidence adduced on site, and from photographs provided, I am satisfied, on the balance of probability, that the bamboo is, at least, one of the causes of damage to the television antenna.

19. Regardless how minor the damage may appear, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction, provided that the nexus between the damage and tree causation has been displayed.

20. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, where at [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act to make an order to remedy, restrain or prevent damage”.

21. The applicant claimed that the bamboo has already damaged his replacement antenna, and displayed small metal pieces that had been dislodged. Again regardless of how minor this damage, I am satisfied that the bamboo, in its current form, is also likely to cause damage in the near future.

22. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

23. Given that s 10(2) of the Act is engaged, the Court must consider a range of matters set out at s 12.

24. The planter box structure containing the bamboo is located close, and parallel to the shared timber paling boundary fence. It is robust and contains the bamboo effectively. The stems are relatively clear of the fence, but may sway into contact during strong winds (subs 12(a)).

25. Subsection 12(b) considers whether interference with the tree would, 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, and, if so, whether any such consent or authorisation has been obtained.

26. The respondents note that the applicant’s rear balcony extends closer towards their property than permitted under Building Application No. 39/93. The applicant submitted, that in response to a complaint by the respondents, Council inspected the alleged breach, and that no rectification notice was issued. The applicant claimed that they were given retrospective verbal permission for the balcony extension, and, in the absence of written notification from Council to either party following the inspection, it is reasonable to accept that tacit permission was granted. The applicant noted that he was required to install a privacy screen at the end of the balcony, to benefit the respondents, and this was evident on site.

27. Subsection 12(b2) considers the impact any pruning would have on the tree, which in this case is the bamboo. The respondents submitted that it was relatively easy for them to arch the bamboo canes over so as to prune them to reduce their length, and that they do this regularly. This variety of bamboo grows strongly, and will generally tolerate such pruning maintenance with little negative impact.

28. The respondents submitted that the bamboo contributes to their privacy, landscaping, garden design, and protection from smells or smoke (subs12(b3)). Privacy is noted as particularly important in relation to two levels of living/entertainment areas at the rear of their dwelling, but the bamboo can maintain privacy from the applicant’s overview for both these areas, even if was pruned clear of the applicant’s building.

29. As the bamboo provides little contribution to the local ecosystem and biodiversity, or intrinsic value to public amenity (subss 12(d), (f)), orders made for pruning of the bamboo would not result in a significant loss of environmental benefits.

Risk of Injury

30. The applicant claimed that the bamboo is a risk of injury, on the basis that “bamboo stems could fall and hit people as they walk by”, along with small pieces of metal dislodged from the new aerial by bamboo. As noted by the respondents, there are no obvious characteristics of the bamboo that cause such concern with respect to risk of injury. While small leaf sheaths may regularly fall, it is very rare for stems to break, and the likelihood of genuine injury is minimal. Similarly, the likelihood of injury from small pieces of metal dislodged from the aerial is negligible. Overall, the bamboo poses a low and acceptable risk, and, therefore, this claim with respect to risk of injury is resolved and dismissed.

31. To support their claim for heavy pruning of the bamboo, the applicant noted the issue of ongoing maintenance required to clean up leaves continuously dropping onto their garden and surfaces below the tree.

32. 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.”

33. The issue of the maintenance impost from falling sticks and 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.”

34. As with all similar previous cases, the submission with respect to leaves and other refuse, on the ground or in gutters, does not invoke the Act’s jurisdiction.

35. During proceedings, the applicant withdrew his application under Part 2A of the Act as the bamboo was causing nether a severe obstruction to views from his dwelling, nor a severe obstruction of sunlight to a window of his dwelling. He also withdrew his claim for compensation of $1100, detailed in his application.

36. In any case, with respect to the $500 component of this claim which covered photos, videos and solicitor’s fees for case preparation, Commissioners do not have powers to resolve such claims. Rather, they are dealt with by the Registrar or a Judge of the Court upon receipt of a Notice of Motion.

37. In their alternative orders, the respondents requested removal of the CCTV camera that is directed into their property. Notwithstanding that the camera was located well away from the common boundary, Commissioners again do not have powers to resolve such claims.

The tree

38. Some small branches from the tree are growing close to the respondents’ electricity service wire, and the applicant claims this presents a genuine risk of injury. These wires are insulated and appear to be well attached to both the respondents’ dwelling, and the pole in the street.

39. The respondents submit that the risk is very low, that only minor, if any, pruning is necessary, and that responsibility for any such pruning remain with Ausgrid, the electricity service providers.

40. I concur with the respondents position, that the risk associated with the service wires passing through the tree is negligible, and that no intervention is appropriate.

41. With respect to s 12 considerations, the tree contributes to protection from the sun, and from wind, to landscaping, to the amenity of the respondents' property, and to the immediate locality. It is visible from the street, and from neighbouring houses. It is likely to produce a conspicuous floral display, and thus have intrinsic value to public amenity (subss 12(b3), (e), (f)).

Conclusion

42. I have examined the site and have reached the following conclusions:

1. Though the damage may be considered minor, I have concluded that the bamboo is a cause of damage to the television aerial, and the jurisdiction of the Act is therefore engaged.

2. Ongoing intervention with the bamboo to prevent further damage in the near future, and beyond, can be completed while retaining privacy for the respondents, and without unduly compromising other benefits noted under s 12.

3. The issue of debris falling onto the applicant’s property is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292.

4. The Magnolia tree poses a low and acceptable risk, and no action is available under s 7 of the Act.

Orders

43. The orders of the Court are:

1. Within 30 days of the date of these orders, the respondents, at their expense, shall prune the height of the bamboo hedge, so that no part of it exceeds the height of a horizontal line, projected from the bottom edge of the corrugated roofing iron, at the north east corner of their house.

2. The respondents, at their expense, shall maintain the height of the bamboo hedge, so that at no time in the future, shall the hedge exceed the height specified in Order (1).

3. The respondents, at their expense, shall maintain the bamboo hedge, so that at no time after 30 days of the date of these orders, shall it grow beyond the current boundary fence line, within the applicant’s property.

4. All pruning works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

5. Should access be required to remove any refuse which falls into the applicant’s property, the applicant shall grant the respondents access, upon receipt of at least 24 hours written notice.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 08 July 2021