Lee v Elford

[2024] NSWLEC 1103

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v Elford [2024] NSWLEC 1103

Hearing dates:

25 October 2023

Date of orders:

11 March 2024

Decision date:

11 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application to remove the bamboo is granted in part, as per orders below.

(2) The application to remove other trees is refused.

(3) The application to replace the dividing fence is granted.

(4) The application for the cost of fencing works to be borne by the respondent is refused.

(5) Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to:

(a) remove the ghost bamboo (B1); and

(b) remove all of the slender weaver’s bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver’s bamboo (B2) within 2 metres of their eastern boundary.

(6) The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(7) The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver’s bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary.

(8) Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) (‘the fencing works’).

(9) Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents.

(10) The applicants are to give the respondent 1 week’s notice of the works in Order (9).

(11) The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.

(12) The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – whether tree removal is required – apportionment of costs of the works

Legislation Cited:

Dividing Fences Act 1991, ss 3, 13A

Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12

Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:

Ball v Bahramali [2010] NSWLEC 1334

Barker v Kyriakides [2007] NSWLEC 292

Hinde v Anderson [2009] NSWLEC 1148

Texts Cited:

Burwood Development Control Plan 2023

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

Category:

Principal judgment

Parties:

Janet Lee (Applicant)
Marie Antoinette Elford (First Respondent)
Moustafa Abdul-Rahman (Second Respondent)

Representation:

Counsel:
B Jee (Agent) (Applicant)
N Maddocks (First and Second Respondents)

Solicitors:
Foteades Freeman Cohen (Respondent)

File Number(s):

2023/246672

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Burwood neighbours Janet Lee (the applicant) and Marie Antoinette Elford (the first respondent) and Ali Abdul-Rahman (the first respondent’s husband) share a long common boundary. A brick wall along most of the boundary separates their properties, with a paling fence completing the southern section of the common boundary. The northern part of the boundary, beginning at the street frontage, separates each property’s driveway. The southern part of the boundary separates the applicant’s dwelling on her battle-axe block from the respondents’ rear garden. The respondents purchased their property in 2000; the applicant purchased her property in 2014. The applicant noticed damage to the boundary wall in 2019. The respondents have trees on their property, close to the boundary. The parties have been unable to resolve a dispute over whether the respondents’ trees have caused damage, whether the trees should be removed, and who should pay for works including replacement of the boundary fence. Ms Lee applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be removed, and for the respondents to repair the boundary fence at their cost. The parties agree that the boundary fence needs to be replaced.

2. The applicant obtained a building inspection report from Henry Phan, of Jim’s Building Inspections. The respondents requested Mr Phan’s presence at the hearing for cross-examination, but he refused to appear, apparently because he ‘does not do expert evidence’. His report is given the weight of a background report rather than expert evidence. The respondents engaged Scott Freeman, an arborist, who prepared an Arboricultural Impact Assessment and Tree Management Plan. Mr Freeman was available at the onsite hearing. The Court viewed the trees, the boundary fence, and both properties.

Framework for this decision

3. The key jurisdictional tests in these proceedings are found 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.

4. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. The key issues in dispute are: whether the trees have caused damage; whether the trees should be removed; the nature of a replacement boundary fence; and who should pay for the works.

Reasonable effort to reach agreement

5. The applicant submitted that she raised the issue with the respondents after first noticing that the brick wall was cracked and leaning and a side gate on her property was out of alignment. Despite the respondents giving generally positive responses at the time and during subsequent conversations with the applicant, the respondents took no action. After the respondents put their property on the market, the applicant sought mediation and discussed the issue with an agent of the respondents, without success.

6. Ms Maddocks submitted that the applicant did not give the requisite notice at s 8 of the Trees Act. Despite Ms Maddocks’ argument to the contrary, I find the timeline set for these proceedings from the filing of the application allowed for the requisite notice, as per the findings of Fakes C at [38] in Ball v Bahramali [2010] NSWLEC 1334. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents (s 10(1)(a) of the Trees Act) and gave the required notice of the application (s 10(1)b)).

The trees

7. Along the narrow garden bed between the respondents’ driveway and the boundary wall, the respondents planted a row of 10 ornamental pear trees (Pyrus ussuriensis according to Mr Freeman) (the pear trees) in or around 2005. According to Mr Freeman, the pear trees are around 8 metres tall with an average stem diameter of 24 cm. They are planted less than half a metre from the brick wall. The pear trees are healthy and are expected to contribute positively to the landscape for many years.

8. In their rear garden, the respondents have two clumps of bamboo near the common boundary:

• a clump of ghost bamboo (Dendrocalamus minor var. amoenus) (B1) approximately 8 metres tall near the southern end of the brick wall; and

• a larger hedge of slender weaver’s bamboo (Bambusa textilis var. gracilis) (B2) approximately 7 metres tall further south, generally adjacent to the paling timber section of boundary fence.

9. Pursuant to s 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act.

Damage

Whether the pear trees have damaged the applicant’s property

10. A survey plan by Gregory Boot from 2008, updated or confirmed in 2022, indicates that the brick wall between the properties is located slightly to the applicant’s side of the boundary. Depending on the context, the wall may therefore be considered as the applicant’s property. The brick wall leans significantly in places. Where the southern section of the wall kicks slightly westward at a change in the boundary alignment, the two sections of wall have separated.

11. Mr Phan thought the respondents’ pear trees caused the damage, but undertook no investigation to support this conclusion. Mr Jee (the applicant’s son acting as her agent) submitted that Mr Phan is a suitably qualified builder who has found that the pear trees damaged the wall. Mr Phan’s report lacks any reasoning that logically leads to this conclusion and would not attend the hearing. His report gave little assistance to the Court regarding causation. Mr Phan surveyed the alignment of each pillar along the brick wall and quantified their degree of displacement. All piers along the wall were displaced.

12. Mr Freeman, the arborist engaged by the respondents, wrote on p 20 of his report (in Exhibit 1):

“The existing common brick boundary wall, (age and heritage unknown) does have some sections that are leaning and are required to be removed and replaced. Consideration of damage from the planted Manchurian pears were considered, with a section of wall separating as per figure 8.

It is inconclusive that this fencing movement is attributed from the site trees, there are other sections of the wall that have Manchurian Pears being in the same age, height, and condition, with no movement or cracking of the boundary wall being evident.”

13. Mr Jee pointed out that Mr Freeman is not a builder or engineer, so lacks the expertise to assess the wall’s damage or its causes. Mr Freeman did not survey the wall and based his assessment on visual observations only. I accept that Mr Freeman’s evidence regarding the wall’s damage is unqualified and provides little assistance to the Court.

14. Ms Maddocks submitted that the underlying cause of the wall’s failure is its poor structure. She said the Court had no evidence to demonstrate that the pear trees have damaged the wall. Some cracks in the wall are not adjacent to the pear trees. Mr Phan identified structural issues with the wall including an absence of expansion joints to accommodate thermal movement.

15. Mr Jee submitted that the wall’s northern-most pier, with no adjacent trees, leans the least. The applicant provided photos from real estate promotional material in 2014, saying this shows the wall was at that time vertical and undamaged. Ms Maddocks submitted that the photos did not show any great detail and were of little assistance. The applicant’s evidence was that the wall was already leaning by 2014.

16. The nature of evidence before the Court does not demonstrate causation of the wall’s damage. However, I observed during the onsite view that some cracks in the wall align with the most probable locations of roots of some of the pear trees. The proximity of pear trees to the most severe areas of damage is itself persuasive. On the balance of probabilities, I find that the pear trees have contributed to the wall’s damage but are unlikely to be the sole cause. The wall is possibly more than 50 years old and appears not adequately built for site conditions. Mr Phan identified this and other factors likely to have contributed to the wall’s condition. The pear trees’ contribution has likely accelerated the need to replace the wall by perhaps, at my estimate, 5–10 years. That the trees have contributed to damage is sufficient to enliven the Court’s jurisdiction at s 10(2)(a) of the Trees Act.

Whether the bamboo has damaged the applicant’s property

17. The boundary brick wall is also leaning to the east adjacent to the ghost bamboo (B1). Considering its proximity to the wall, and its contact with the wall in places, I am satisfied that this bamboo has contributed to the wall’s condition. Here, too, the wall’s structure is perhaps not to current building standards, but the bamboo has accelerated its need for replacement.

18. At the base of the brick wall is a stone-and-mortar retaining wall that has cracked but is not significantly out of alignment. The applicant submitted that this too is caused by the bamboo. Mr Phan concluded as much, but provided no evidence or reasoning to support this. On the available evidence, I cannot be satisfied that the bamboo has contributed to this issue.

19. The slender weaver’s bamboo (B2) grows against the paling fence, which leans slightly towards the applicant’s dwelling. The fence is functional, but I find its alignment has been affected by the bamboo. This bamboo grows quickly and is likely to damage the fence in the near future.

20. Below the paling fence is a block retaining wall. A gate attached to that wall no longer closes properly. Mr Jee submitted that this results from the wall being rotated towards the applicant’s dwelling by the force of the bamboo. Mr Phan thought this was caused by bamboo, while Mr Freeman found, without explanation, it “…is not attributed to the Bamboo but rather natural movement (expansion and contraction) of the natural ground”. With no evidence regarding the wall’s structure or the extent of the bamboo’s root system, I cannot determine the cause of damage to the low retaining walls and the gate. No orders will be made on this element of the application.

21. The applicant submitted that debris from the bamboo has damaged her property, resulting in her roof gutters needing to be replaced. If debris has damaged the gutters, that could have been prevented by reasonable property maintenance, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]. No orders will be made on that element of the application.

22. I find both groups of bamboo B1 and B2 have caused or are likely in the near future to cause damage to the applicant’s property, satisfying the test at s 10(2)(a) of the Trees Act.

Consideration of s 12 matters

23. Having found that the pear trees and the bamboo clumps B1 and B2 have damaged, or are likely in the near future to damage the boundary fence, the Court can make orders to remedy or restrain the damage, and to prevent further damage (s 9 of the Trees Act), but only after considering relevant matters at s 12.

24. The trees and bamboo are all close to the common boundary. Removing the pear trees would require Burwood Council’s consent, but under cl 6.1.1 of the Burwood Development Control Plan 2023 bamboo is an exempt species. The pear trees and bamboo all contribute to the amenity and landscape value of the respondents’ property and surrounding properties. They provide some ecosystem services, but do not make a significant contribution to the broader environment. They contribute to privacy by providing some screening between adjoining properties. The respondents planted the pear trees and have maintained the pear trees and the bamboo. Damage to the brick wall is likely a result of its structure being inadequate for site conditions, with trees a contributing factor. The applicant informed the respondents of potential property damage in 2019. The presence of trees, and the respondents’ lack of action over the next few years, have led to the brick wall requiring replacement earlier than it might have otherwise.

Whether tree removal is required

25. Mr Freeman gave evidence that the wall could be replaced by a lightweight fence, rather than a brick wall, thereby avoiding impacts to the pear trees’ roots and allowing for their retention. Mr Phan also suggested this solution for the fence if the pear trees are retained. Such a wall should cost significantly less than a brick wall. Retaining the pear trees will benefit the amenity of both properties.

26. Both ghost bamboo and slender weaver’s bamboo are clumping varieties of bamboo. Nevertheless, they still spread as the clump grows outwards. The proximity of the ghost bamboo (B1) to the brick wall and the applicant’s retaining wall is likely to result in ongoing issues. The ghost bamboo appears more vigorous than the slender weaver’s bamboo. To avoid damage and to minimise the likelihood of ongoing disputes, orders will be made to remove the ghost bamboo (B1).

27. The slender weaver’s bamboo (B2) grows alongside the paling fence. To minimise the likelihood damage to the fence and of ongoing disputes, it must be kept clear of the paling fence. This requires orders for removal of all slender weaver’s bamboo within 50 cm of the common boundary fence, and reducing its height to 4 metres to limit the movement of bamboo culms in the wind. Should the respondents find this onerous, they may remove the bamboo. Having indicated the Court’s preferred height for this section of bamboo, the Court makes no ongoing orders for pruning. Should the bamboo cause damage in future, the applicant may make a fresh application to the Court: see Hinde v Anderson [2009] NSWLEC 1148.

Replacement of the boundary fence

28. All agree that the boundary brick wall needs to be replaced. Pursuant to s 13A of the Dividing Fences Act 1991, the parties request that orders be made for replacing the entirety of the brick wall. They agree that if the pear trees are retained, the wall should be replaced by a lightweight structure. Mr Freeman provided two examples of lightweight fences in Appendix A of his report.

29. While the brick wall is shown on a survey plan to be generally within the applicant’s property, definitions at s 3 of the Dividing Fences Act 1991 provide:

“dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.”

30. The Court can make orders for the entire fence pursuant to s 13A of the Dividing Fences Act 1991. Orders will be made for the brick wall to be demolished and replaced with a lightweight fence.

31. The paling fence at the southern part of the boundary does not require works.

Apportionment of costs of the works

32. The respondents are responsible for maintaining their vegetation, so will pay for the removal of the ghost bamboo and managing the slender weaver’s bamboo.

33. The costs of dividing fence works are usually shared equally, but in this case the respondents’ pear trees have accelerated the need to replace the wall. The impacts to the wall’s useful life and the timing of its replacement can only be roughly estimated (see [16] above), so the costs will be apportioned 70/30 to the respondents and the applicant respectively.

34. The applicant submitted that a lightweight fence as a replacement to the brick wall will lower their property value compared. They provided no evidence of this. They submitted that the lightweight fence benefits the respondents only, by allowing them to retain the pear trees. I find the pear trees contribute to the amenity of both properties, so the applicants also benefit from the use of a lightweight fence.

Orders

35. The Court orders:

1. The application to remove the bamboo is granted in part, as per orders below.

2. The application to remove other trees is refused.

3. The application to replace the dividing fence is granted.

4. The application for the cost of fencing works to be borne by the respondent is refused.

1. Within 30 days of the date of these orders, the respondents, or a suitably qualified, experienced, and insured arborist or landscape contractor engaged and paid by the respondents, are to:

1. remove the ghost bamboo (B1); and

2. remove all of the slender weaver’s bamboo (B2) within 50 cm (at ground level) of their eastern boundary and prune to a height of 4 metres all remaining slender weaver’s bamboo (B2) within 2 metres of their eastern boundary.

6. The works in Order (5) are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

7. The respondents are to take all reasonable measures to prevent the ghost bamboo (B1) regrowing and to prevent the slender weaver’s bamboo (B2) regrowing within 50 cm (at ground level) of their eastern boundary.

8. Within 30 days of the date of these orders, the applicant and the respondents are each to obtain and swap with each other at least one but up to two quotes from fencing contractors to demolish the brick wall on or adjacent to the boundary, from its northern end to where it meets the paling fence at the south, and replace it with a capped, lightweight fence similar to those shown on pp 23 and 34 of the Freeman report (in Exhibit 1) (‘the fencing works’).

9. Within 90 days of the date of these orders, the applicant is to engage the fencing contractor from the cheapest quote obtained from Order (8), or from another of the quotes if agreed to by the parties, to carry out the fencing works, with the 30% of the cost paid by the applicant and 70% of the cost paid by the respondents.

10. The applicants are to give the respondent 1 week’s notice of the works in Order (9).

11. The applicant and the respondents are each to provide all access necessary for the quoting and carrying out of all works in the preceding orders.

12. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 11 March 2024