Day v Acton

[2022] NSWLEC 1461

Land and Environment Court

New South Wales

Medium Neutral Citation:

Day v Acton [2022] NSWLEC 1461

Hearing dates:

28 March 2022, 5 April 2022 and 19 April 2022

Date of orders:

01 September 2022

Decision date:

01 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

1) The Pt 2A application is refused.

2) The Pt 2 application is granted to the extent of the following orders.

3) Within 30 days of the date of these orders, the Respondent is to remove, or engage and pay for a contractor to remove, all bamboo along that part of the Respondent’s rear boundary that is the common boundary shared with the Applicants.

4) Within 30 days of the date of these orders the Applicants and the Respondent are each to obtain and provide to the other party at least one quote, made out to both the Applicants and the Respondent with each to pay 50% of the cost, from a fencing contractor for:

a) removing the fence along their common boundary;

b) constructing a new 1.8-metre timber paling fence, or another form of fence should they agree, along their common boundary.

5) Within 7 days of swapping fencing quotes in order (4), the parties are to select the cheapest of the fencing quotes, unless they agree on another quote. The parties are to engage the selected contractor under a fencing agreement, in which the Applicants are to pay 50% of the cost of the works and the Respondent is to pay 50% of the cost of the works, to carry out the fencing works as quoted in (4) within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement.

6) The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day.

7) For 24 months from the date of these orders, each party is to remove any bamboo growing on their property along their common boundary.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the Applicant made reasonable effort – neighbouring bamboo – Pt 2 application – damage to fence – whether fence needs replacing – whether bamboo must be removed – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – pruning done by the Respondent

Legislation Cited:

Dividing Fences Act 1991, s 13A

Trees (Disputes Between Neighbours) Act 2006, s 3, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:

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

Category:

Principal judgment

Parties:

Yvonne ‘Angelina’ Day (First Applicant)
Graham Faichney (Second Applicant)
David Acton (Respondent)

Representation:

Counsel:
Y Day (Self-represented) (First Applicant)
G Faichney (Self-represented) (Second Applicant)
D Acton (Self-represented) (Respondent)

File Number(s):

2021/331793

Publication restriction:

No

Judgment

Background to the application

1. Commissioner: Yvonne ‘Angelina’ Day and Graham Faichney (the Applicants) have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for their neighbour David Acton (the Respondent) to prune or remove a bamboo hedge and to replace a boundary fence.

The hearings

2. An onsite hearing took place on 28 March 2022. Parties were self-represented. The Court visited both properties to view the bamboo, the boundary fence, views and view obstruction, and the surrounding environment.

3. The Applicants seek orders under Pt 2 of the Trees Act for replacing the boundary fence, and under Pt 2A of the Trees Act for removing the bamboo. The Applicants completed Form G, being the claim details form for the Pt 2A application, but did not complete Form H, the claim details form for the Pt 2 application. As a result, the Court had no details of the Pt 2 application prior to the onsite hearing and, importantly, the Respondent had no details of this part of the Applicants’ claim. Subsequent telephone hearings on 5 April 2022 and 19 April 2022 allowed the filing of Form H and additional submissions from both parties.

Application under Pt 2

Framework

4. As permitted by s 7 of the Trees Act, the Applicants have applied for orders to remedy damage, and to prevent further damage, to their property as a consequence of trees on adjoining land. Bamboo is a tree for the purposes of the Trees Act (at s 3(1)). The orders sought are those that the Court has the jurisdiction to make at s 9 of the Trees Act.

5. Orders can only be made if the Court is satisfied of certain matters 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.

6. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act.

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 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,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) 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, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicants made a reasonable effort

7. Mr Acton submitted that the Applicants did not try to reach an agreement on the issue of fence damage. He received text messages about pruning the bamboo to maintain a view. Records of text messages also show that Ms Day referred to fence damage in October 2021, prior to commencing these proceedings. Mr Acton received no further details of the fence damage prior to receiving a copy of the application, which initially only included the Part G form relating to view obstruction.

8. The issue of fence damage was raised at the hearing: Ms Day explained the damage; Mr Acton only repeated that he was not the property owner at the time the bamboo was planted and he had no knowledge of how the fence became damaged. It was clear to the Court that the parties could not discuss the issue in a reasonable way that might resolve it. The hurdle at s 10(1)(a) of the Trees Act requires the Court to be satisfied, before making any orders, that the Applicants made a reasonable effort. While it is desirable that the Applicants try to resolve an issue with their neighbour before coming to Court, that is not a jurisdictional requirement: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [194]–[196]. I am satisfied, considering the circumstances, that the Applicants made a reasonable effort to reach agreement in accordance with s 10(1)(a) of the Trees Act.

Bamboo has damaged the fence

9. Bamboo grows on Mr Acton’s property in a narrow raised garden bed along his rear boundary, part of which is the common boundary shared with the Applicants. The bamboo was planted by a previous owner of the property. The timber fence along this common boundary is in poor condition and requires additional support to hold it upright. Ms Day submitted that the fence was damaged when the bamboo was planted. If that is the case, Ms Day might have asked that owner to repair the fence, but she did not. Since then, as I observed during the onsite hearing, the bamboo has grown against the fence and has contributed to further damage. Regardless of the original cause, both parties now have a damaged fence along their common boundary. Neither party has deliberately caused the damage. Mr Acton could not see the issue from his side, as the bamboo and an outbuilding conceal the fence. The fence requires repair, and it would be reasonable for the parties to share the cost of this in the usual manner. Because the bamboo along the common boundary grows in a narrow raised bed, it must be removed, not only to allow the fencing works to be carried out in a reasonable manner, but also to prevent further damage to the fence in the future. Orders will be made for the Respondent to remove the bamboo.

10. The fence now needs replacing or repair, even where bamboo might not be the cause of its condition. Because bamboo has damaged part of the fence, the Court has the jurisdiction to make orders to replace the entire fence, as per s 13A of the Dividing Fences Act 1991. Orders will be made to replace the fence.

11. It can be difficult to remove bamboo entirely and to prevent its regrowth. The Applicants have found numerous bamboo shoots growing in their property near the common boundary. There has been a lack of cooperation between the parties to date, and their communication during the hearing did not indicate that this is likely to change. To minimise the likelihood of an ongoing dispute, it is perhaps preferable that each party take responsibility for any bamboo regrowth on their own property – expecting others to remove it might only lead to disappointment, ongoing disputes and a return to Court.

Application under Pt 2A

12. Part 2A of the Trees Act provides a limited jurisdiction for those who find neighbouring trees obstruct their sunlight or views. Firstly, at s 14A:

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.

13. Bamboo grows on Mr Acton’s property along his rear boundary, part of which is the common boundary shared with the Applicants. Bamboo is a tree for the purpose of the Trees Act (s 3(1) of the Trees Act). The parties do not dispute that the bamboo forms a hedge more than 2.5 metres tall – it reaches approximately 4 metres above the soil in the raised garden bed. The trees are not on Crown land. Therefore, Pt 2A of the Trees Act applies to the subject trees.

14. Before the Court can make any orders, the jurisdictional tests at s 14E of the Trees Act that must be satisfied.

14E 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 trees are 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 14C.

(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.

The applicants made a reasonable effort

15. Ms Day’s explanation of the history of this issue made it clear that it began with the previous owner of Mr Acton’s property. The previous owner planted the bamboo. After some negotiation, the hedge was pruned twice, in 2018 and in 2019. Mr Acton purchased the property in March 2021. He promptly received a text message from the Applicants asking him to prune the hedge as per an agreement with the previous owner. The terms of any former agreement were not forthcoming. The possibility of the parties reaching an agreement seems slim at best. In the circumstances, I am satisfied that the Applicants’ attempt to resolve the issue was a reasonable effort on their behalf.

The bamboo does not severely obstruct a view

16. Under the Pt 2 application (see above), orders are to be made to remove bamboo along the parties’ common boundary. The bamboo planting continues further along Mr Acton’s rear boundary, where it is the common boundary he shares with the Applicants’ neighbour. The bamboo has the potential to obstruct the Applicants’ view.

17. After receiving correspondence from the Applicants, Mr Acton engaged gardening contractors to prune the hedge in November 2022. The Applicants provided him with scant details of an agreement they might have had with previous owners of his property. The contractors began pruning the bamboo to approximately 4 metres in height. Mr Acton received a copy of the tree dispute application before the pruning works were completed. He made it clear at the hearing that he is happy to prune the hedge to a height of 4 metres every 6 months. The recently-pruned section is around that height and does not obstruct a view from the Applicants’ property. Ms Day said she would like it lower than that, but this would not improve her views. Had the Applicants negotiated with Mr Acton prior to commencing these proceedings, they might have reached a satisfactory agreement. If I found the view obstruction was severe, this would be a matter for consideration at s 14F of the Trees Act. The Respondent has taken action to prune the bamboo and intends to continue doing so. Orders for ongoing pruning seem unnecessary.

18. Ms Day stated that the Applicants are preparing to sell their property and they want orders from the Court to pass on as a guarantee to future property owners. The purpose of the Trees Act is principally to resolve disputes between neighbours, but here it seems that there was no real dispute regarding the bamboo’s pruning prior to the hearing. There seems no real dispute with regard to pruning the bamboo, so there is no need for Court orders. As a result, the Pt 2A application is refused.

Orders

19. As a result of the foregoing, the Court orders that:

1. The Pt 2A application is refused.

2. The Pt 2 application is granted to the extent of the following orders.

3. Within 30 days of the date of these orders, the Respondent is to remove, or engage and pay for a contractor to remove, all bamboo along that part of the Respondent’s rear boundary that is the common boundary shared with the Applicants.

4. Within 30 days of the date of these orders the Applicants and the Respondent are each to obtain and provide to the other party at least one quote, made out to both the Applicants and the Respondent with each to pay 50% of the cost, from a fencing contractor for:

1. removing the fence along their common boundary;

2. constructing a new 1.8-metre timber paling fence, or another form of fence should they agree, along their common boundary.

5. Within 7 days of swapping fencing quotes in order (4), the parties are to select the cheapest of the fencing quotes, unless they agree on another quote. The parties are to engage the selected contractor under a fencing agreement, in which the Applicants are to pay 50% of the cost of the works and the Respondent is to pay 50% of the cost of the works, to carry out the fencing works as quoted in (4) within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement.

6. The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day.

7. For 24 months from the date of these orders, each party is to remove any bamboo growing on their property along their common boundary.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 01 September 2022