Frigo v Fokkes

[2018] NSWLEC 1240

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Frigo v Fokkes [2018] NSWLEC 1240
Hearing dates:	20 April 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [63].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – bamboo – whether the bamboo has caused damage – other factors contributing to damage – compensation for damage – what is required to prevent further damage – concrete root barrier – disproportionate orders sought
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Angela Frigo (Applicant) Peter Fokkes (First Respondent) Joanne Fokkes (Second Respondent)
Representation:	D Frigo, agent (Applicant) M Fokkes, agent (Respondents)
File Number(s):	2017/354611
Publication restriction:	No

Judgment

Background

1. For many years bamboo has grown on Peter and Joanne Fokkes’ Croydon property. It grew in the area along their western boundary, a common boundary that the Fokkeses (‘the respondents’) share with Angela Frigo (‘the applicant’). The bamboo, a spreading, rhizomatous variety, grew tall. It spread across boundaries, so that rhizomes proliferated in Mrs Frigo’s garden, with shoots establishing up to 10 metres from the common boundary.

2. A section of the common boundary toward the rear of the properties lacked a dividing fence, or had fencing in poor condition. Bamboo hindered maintenance and works in this area. Mrs Frigo wanted to remove an old garage and build a new garage. The bamboo’s presence would hinder the works.

3. The history of communications between the neighbours shows many attempts were made to reach certain outcomes regarding these various issues, without any agreed resolution. The nature of their relationship has deteriorated.

The application

4. Mrs Frigo has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking various orders. Mrs Frigo not only wants bamboo removed from her property, but also seeks certain measures to prevent any future growth of bamboo into her property. She wants compensation for damage to her property and a new dividing fence.

5. Mrs Frigo also seeks costs of engaging consultants to provide advice and evidence. Commissioners of the Court do not have the power to order costs, so that element of her application would require a Notice of Motion to be heard by a Judge or the Registrar of the Court, should she wish to pursue that.

6. A scanned copy of the proposed orders is included below, redacted to remove addresses.

Recent changes in the circumstances

7. In recent months, various activities have taken place.

8. The Fokkeses have undertaken extensive works to remove bamboo from their property, so that no parts remain above-ground apart from a single shoot observed at the hearing.

9. A new timber dividing fence along the rear section of the common boundary was constructed after agreement on this one issue was reached in June 2017.

10. Mrs Frigo has engaged contractors to remove the old garage and begin excavation works for her new garage.

11. A length of Mrs Frigo’s concrete driveway has been removed. Mr Frigo (her son) says this was done to demonstrate at the onsite hearing that bamboo rhizomes are present beneath, and have damaged, the driveway.

Onsite hearing

12. The hearing took place onsite. Mrs Frigo was represented by her son Davide Frigo, acting as her agent. The Fokkeses were represented by their son Michael Fokkes, acting as their agent.

13. Mrs Fokkes showed us the areas of their garden where bamboo grew. Apart from one small live shoot, no live bamboo was observed. Piles of dead bamboo shoots and roots were along the boundary. A hose along the boundary has been in place for some time, watering replacement plantings. Bamboo material that has been shredded covers an area of the garden further from the boundary.

14. On her property, Mrs Frigo showed us bamboo rhizomes and shoots, damage to the dividing fence and damage to the driveway. A small clump of bamboo shoots at the rear of her dwelling were about 10m from the boundary.

15. Margot Blues, an arborist engaged by Mrs Frigo to prepare an expert report, attended and gave evidence at the hearing.

16. The hearing took longer than might be expected. The parties wanted to make extensive submissions about the history of the situation; they sought leave to cross-examine each other; Mr Frigo claimed the respondent’s affidavit was defamatory. Here, as during the hearing, I have tried to distil the evidence and submissions down to the issues that are relevant to making a decision within the jurisdiction of the Trees Act.

The applicant’s submissions

17. Below is an outline of the Mrs Frigo’s relevant submissions.

18. Bamboo has been present on the Fokkeses’ property for many years. The bamboo is a spreading variety belonging to the genus Phyllostachys. In many areas it is listed as a noxious weed.

19. Bamboo has spread across the boundary onto Mrs Frigo’s property, with extensive subsurface growth of rhizomes, which are still alive.

20. Live shoots are up to 10 metres or more from the common boundary, at the rear of the applicant’s dwelling.

21. Bamboo has damaged the ground on the applicant’s property, her driveway and a stormwater pipe.

22. The respondents caused further damage to a section of the driveway and fence when removing some bamboo.

23. Bamboo has damaged the older section of the boundary fence to the extent that it needs replacing.

24. Bamboo will damage the new garage. Mrs Frigo had to change the design of the garage to prevent this.

25. The Fokkeses have been reluctant to deal with the bamboo.

26. Despite the Fokkeses’ recent efforts to remove bamboo, live rhizomes remain underground on their property and will only reshoot.

27. The Fokkeses have poured poison onto the Mrs Frigo’s property without her approval. Mrs Frigo says she has seen pools of liquid that looked like herbicide on her property near the common boundary.

28. To remove the bamboo from both properties, the upper layer of soil to a depth of half a metre must be removed within several metres of the boundary and replaced with new soil.

29. Despite the removal of soil, bamboo will regrow. A concrete barrier is therefore required along the boundary to prevent it spreading across the boundary again. To install such a barrier, the fence will need to be removed and replaced, including the new section of fence at the rear section of the boundary. The applicant has calculated apportionment of the costs of this based on the percentage of the boundary along which bamboo grew.

The respondents’ submissions

30. An outline of the respondents’ relevant submissions follows.

31. The bamboo has been killed and all reasonable effort made to remove it from the Fokkeses’ property.

32. Along the boundary, after removing bamboo, a hose was placed to water the area to encourage growth of any remaining rhizomes, which were also killed. No new growth has occurred recently. The hose and replacement plantings remain in place and show that the area has not been disturbed for some time now.

33. The respondents have never applied poison to the applicant’s property.

34. The applicant has encouraged growth of the bamboo at the rear of her dwelling for the purpose of the hearing, rather than removing it.

35. Rhizomes beneath the applicant’s driveway are dead.

36. The applicant’s driveway is damaged near the front of her property, away from any bamboo. Driveway damage is a result of age and wear-and-tear, not bamboo.

37. The applicant has damaged the PVC stormwater pipe when removing a drain and part of the driveway. Bamboo has not damaged the pipe.

38. The Fokkeses will take any action necessary to prevent the bamboo regrowing, so a concrete barrier along the boundary is not required.

39. In August 2017 Burwood Council’s compliance team investigated the Fokkeses’ property and expressed in writing (Annexure C of Exhibit 1) their satisfaction that reasonable action had been taken to mitigate the bamboo’s spread. The Fokkeses had earlier been directed to control the bamboo.

Burwood Council

40. Mr Joe Lilly, Burwood Council’s tree management officer, attended the hearing. He verified that he had made certain statements to the parties. He verified that Council can no longer order removal of bamboo. He agreed that Council had expressed satisfaction with the removal of bamboo within the Fokkeses’ property.

Findings

Growth of bamboo is not ‘damage’

41. The bamboo was once prolific here. I have no doubt its impact was significant, especially visually, before it was controlled. Photographs show it was tall and dense.

42. The bamboo’s rhizomes grew vigorously into Mrs Frigo’s property. They can be seen in photographs and beneath the removed section of the driveway. Bamboo shoots grew from rhizomes.

43. No doubt the prolific growth of bamboo at her boundary and within her property has been a nuisance to Mrs Frigo. However, more than mere nuisance is required by the legislation of the Trees Act, as established at s 10(2):

(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.

44. Preston CJ differentiated between damage to property and damage to land in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at [166]:

…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…

45. The mere presence of bamboo in Mrs Frigo’s property cannot be considered as damage. It follows that I cannot make orders on the basis only that bamboo grows within Mrs Frigo’s property, however I could if its presence satisfied me that it is likely to cause damage in the near future.

The driveway

46. Works for Mrs Frigo’s garage in her back yard have begun. The rear section of her driveway, closest to the works and to the area where the old garage was removed, has been broken up and removed. (This can be seen on pp 28–33 of the applicant’s Claim Details, Exhibit B.) Bamboo rhizomes are plentiful in the exposed soil. Mr Frigo (the applicant’s son, acting as her agent during the hearing) said he had removed the driveway here to show that it had been damaged by the bamboo. He says he did this with a sledge hammer to assist with evidence at the hearing. I note that photographs on pp 27 and 28 of Exhibit B show a large excavator working in this area of the property. I am not convinced of the method or reasons for the driveway’s removal. Regardless, now that the concrete has been broken up and removed, I cannot see that it was damaged prior to the recent works, or that any damage was caused by bamboo.

47. The Fokkeses pointed out damaged areas of the driveway near the front of the property, where Mrs Frigo agrees there are no bamboo shoots or rhizomes. The driveway has suffered from general deterioration. Mr Frigo says the damage at the front is not so severe that they would need to repair the driveway, but the rear section was so badly damaged, by bamboo he says, that it needs replacement, so they might as well replace the whole driveway. I asked Mr Frigo if he might be able to show me that the driveway had been damaged by bamboo. I stressed the importance of this – that I could not make any orders for this element of the application unless I could be satisfied, to the extent required by s 10(2), that bamboo was a cause of damage, even if there were also other causes. In response, he first took me to some small bamboo shoots next to the driveway as proof that they had caused damage. I explained that I accepted bamboo was growing here, but this did not establish any connection between the bamboo and the driveway’s alleged condition. Mr Frigo then showed me a photograph that was either ‘Photo 5’ on p 9 of Ms Blues’ report (Exhibit C) or one very similar. According to Mr Frigo this photo showed that a slab of the driveway near the old garage was raised near the fence and sunken near the dwelling, and this was caused by bamboo. To me, the photo shows the rear section of the driveway to be in a condition no worse than the front section. In fact, areas at the front are more severely damaged. It cannot be seen that there is more severe damage at the rear, requiring the driveway to be replaced. Furthermore, there is no evidence at all that, if there is any unevenness to this section of the driveway (and I am not convinced there is), the unevenness has been caused by bamboo.

48. Considering the recent removal of most of the bamboo from the Fokkeses’ property, future growth of any surviving rhizomes will be less vigorous and more easily controlled. There is nothing to suggest that bamboo will damage the driveway in the near future, a period I regard as being 12 months or so since Yang v Scerri [2007] NSWLEC 592.

49. Because I am not satisfied that bamboo has damaged the driveway, or is likely to do so in the near future, I cannot make any orders for this element of the application.

The stormwater pipe

50. A PVC stormwater pipe running alongside Mrs Frigo’s dwelling has been damaged. Mrs Frigo says this was caused by bamboo.

51. Again, I asked Mr Frigo to show me evidence that would satisfy me that bamboo had caused damage. He pointed out rhizomes against the pipe, however this only showed that there was no damage in many areas where rhizomes were growing against the pipe. Photos in Exhibit B show remaining rhizomes against the undamaged section of pipe.

52. Mr Frigo then pointed out a section of pipe near a drain that had been removed at the back corner of the dwelling. Here the pipe is badly damaged. According to Mr Frigo this was caused by bamboo. This damage is adjacent to areas of recent demolition, where the driveway has been broken up and removed. As I’ve described earlier, I am not satisfied that this demolition was only done by Mr Frigo with a sledgehammer, and that some of it did not result from large machinery working here. Mr Frigo says that he removed the stormwater grate and drain with a sledge hammer.

53. Below is a photo I took of the damaged section of the pipe, tendered as Exhibit 3. Red arrows indicate the areas that Mr Frigo says have been damaged by bamboo.

54. This is the only part of the pipe where Mr Frigo could show damage, rather than the mere presence of bamboo shoots or rhizomes against the pipe. I accept the Fokkeses’ suggestion that the damage here appears more likely to have been caused by a sledge hammer or adjacent works, rather than by the growth of bamboo rhizomes. There is no evidence that there were greater numbers of rhizomes here, or that rhizomes here were larger than elsewhere, so it is difficult to accept that the damage was caused by rhizomes when there is no damage to other parts of the pipe where rhizomes are at least as plentiful.

55. Remaining rhizomes are either dead or now heavily suppressed and more easily controlled should they reshoot. They are unlikely to damage the PVC pipe in the near future.

56. I am not satisfied that bamboo has caused damage to the PVC pipe, or is likely to do so in the near future, so this element of the application is dismissed.

The fence

57. The fence along the rear part of the common boundary was built last year and is not damaged. Mrs Frigo says the fence along the front section of boundary was damaged by the bamboo. There is some slight buckling at the bottom of the fence in parts. A few palings have minor damage. I accept Mrs Frigo’s submissions that the neighbouring bamboo caused some damage to this fence. This enlivens the jurisdiction at s 10(2) of the Trees Act, so I may make orders for the bamboo and the fence. However, I also accept the Fokkeses’ submissions that the fence is still fit for purpose. It is some 20—30 years old but has some years left. The fence is solid, vertical and along the boundary. There is no need to replace it. I will not make any orders for the fence, but orders will be made to ensure bamboo does not regrow and cause any further damage.

Is a root barrier required?

58. Although the bamboo was once well established on the respondents’ property, there appears to be very little live material left there. Whatever live rhizomes remain are on both properties and, in fact, at the time of the hearing there was more bamboo growth above-ground on the applicant’s property than on the respondents’. To whatever extent it remains an ongoing problem, it will be a problem for both parties. The scale and expense of the proposed root barrier would be disproportionate to the present situation. As I will be making orders to prevent any further damage from the bamboo, there is no need for such a root barrier along the boundary.

59. Mrs Frigo sought orders for the replacement of the new section of fence because the installation of a root barrier along the boundary would require the fence’s removal. As I am not making orders for installation of a root barrier, the fence will not need replacing.

Controlling growth of the bamboo to prevent damage

60. I found above at [57] that bamboo had damaged the fence, allowing me to make orders for controlling what remains of the bamboo. Any live rhizomes will reshoot and, without control, may damage the fence or other property.

61. It appears that there is now very little live bamboo left, although a few live shoots demonstrate that it is persistent and is likely to require some future effort to prevent re-establishment. Live rhizomes may be present on both properties.

62. The orders sought for removing any remaining live material are excessive and disproportionate. Ms Blues’ evidence supported Mrs Frigo’s submission that removal of soil and rhizomes is necessary to prevent the bamboo regrowing, but ignored the treatment recommended by the NSW Department of Primary Industries (DPI) (pp 8 and 9 of Exhibit 1). Any further growth of shoots on both properties can be controlled through cutting and painting with herbicide, as recommended by the DPI. Two years of regular monitoring and treatment should prevent future regrowth and avoid any further damage caused by bamboo.

Orders

63. Based on the foregoing, the orders of the Court are:

1. For two years from the date of these orders, every 3 months (or more frequently should they wish) the respondents are to cut and paint with a suitable herbicide, used according to the manufacturer’s directions, any bamboo shoots on their property.

2. For two years from the date of these orders, every 3 months (or more frequently should she wish) the applicant is to cut and paint with a suitable herbicide, used according to the manufacturer’s directions, any bamboo shoots on her property.

____________________________

D Galwey

Acting Commissioner of the Court

Amendments

23 May 2018 - Correction to heading.

Decision last updated: 23 May 2018