Machado v Zammit
[2020] NSWLEC 1136
•18 March 2020
Land and Environment Court
New South Wales
Medium Neutral Citation: Machado v Zammit [2020] NSWLEC 1136 Hearing dates: 18 March 2020 Date of orders: 18 March 2020 Decision date: 18 March 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [12]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – boundary fence – bamboo – whether bamboo should be removed – replacement of fence Legislation Cited: Dividing Fences Act 1991 (NSW)
Trees (Disputes Between Neighbours Act) 2006 (NSW)Category: Principal judgment Parties: Elizabeth Machado (Applicant)
Charles Zammit (First Respondent)
Angelita Zammit (Second Respondent)Representation: E Machado (Litigant in person) (Applicant)
M Machado (Agent) (Applicant)
C Zammit (Litigant in person) (First Respondent)
A Zammit (Litigant in person) (Second Respondent)
File Number(s): 2019/381508 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background to the application
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The timber paling fence along the rear boundary of Elizabeth Machado’s North Epping property was replaced in 1992. In 2006, neighbours to her south planted bamboo between the fence on the common boundary and their pool wall, which is less than a metre from the fence. The fence has deteriorated and now needs replacing.
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Ms Machado (‘the applicant’) has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) (‘the Trees Act’), seeking orders for Charles and Angelita Zammit (‘the respondents’) to remove the bamboo at their own cost, with the parties then to share the cost of replacing the boundary fence. Ms Machado wants the Zammits to maintain any new hedge, or the bamboo hedge if it is not removed, so that it does not damage the new fence, including installation of a root barrier if bamboo is retained or replanted.
Onsite hearing
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This afternoon’s onsite hearing allowed me to observe the situation and hear submissions from both parties.
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Ms Machado submitted that the fence has been damaged by the bamboo pushing against it, so that it is now displaced from its original alignment, especially at its western end. She stated that she must regularly engage a contractor to prune bamboo overhanging the boundary, and that shoots of bamboo grow on her side of the fence. According to Ms Machado, the fence is no longer on the boundary, but corner posts of adjoining fences indicate the boundary’s true alignment. Ms Machado obtained arboricultural advice from Phil Witten, of Tree Survey, who recommended that, if the bamboo is retained, a root barrier should be installed between the fence and the bamboo at a setback from the fence of 600 mm, so as to avoid future fence damage.
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The Zammits explained that they planted the bamboo for amenity and for privacy, preventing overlooking from Ms Machado’s upslope dwelling. They submitted that the bamboo also minimises water run-off from Ms Machado’s property onto their own. They argued that a build-up of soil on Ms Machado’s side of the fence has contributed to its condition. They agreed that the fence has reached the end of its useful life and needs replacing. They explained that they were investigating options for a root barrier, but a setback of 600 mm from the boundary was too great as this would require removal of most of the bamboo.
Has the bamboo damaged Ms Machado’s property?
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According to s 10(2)(a) of the Trees Act, I cannot make any orders unless I am satisfied that the respondents’ trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property. Bamboo is a tree for the purposes of the Trees Act. The Zammits’ bamboo grows against the fence. Certainly at its western end, the bamboo has displaced the fence. Therefore I can make orders for repairing or replacing the fence; not just for any parts damaged by bamboo, but for its entire length along the common boundary, as per s 13A of the Dividing Fences Act 1991 (NSW).
Does the fence need to be replaced?
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The parties agreed that the fence needs to be replaced. Ms Machado explained that a similar paling fence would suffice, while the Zammits would prefer a steel panel fence. Unless the parties agree otherwise, it is usual practice that a replacement fence be of a similar nature to the existing fence, so I will order replacement with a timber paling fence.
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Apart from the bamboo’s growth, other factors have contributed to the fence’s condition: soil build-up and the fence’s age. Other fences of the same vintage on these properties have already been replaced. It is reasonable that the parties share equally the cost of fence replacement.
Does the bamboo need to be removed?
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The bamboo provides benefits for the Zammits, who would prefer to avoid its removal. If they maintain the bamboo clear of the boundary fence, the new fence would not be damaged. This will require some considerable input from the Zammits. I will make orders to prevent the bamboo causing future damage; however, the Zammits may remove the bamboo (subject to any council permit requirements) if they find the task too onerous.
Is a root barrier required?
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A root barrier between the fence and the bamboo would prevent bamboo damaging the new fence for a period of time, but is likely to be expensive to install. Alternatively, ongoing maintenance to remove bamboo growth near the fence would also prevent future damage. What matters is that the bamboo does not grow within a reasonable distance of the fence. I will leave it to the Zammits to determine how they achieve this.
Orders
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The following orders allow for bamboo along the fence line to be removed between the fence being removed and then replaced. If contractors are unable to carry out the works in the given timeframes due to governmental Covid-19 guidelines, the parties can have the matter relisted for timeframes to be revised.
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As a result of the foregoing, the Court orders:
Within 30 days of the date of these orders the parties are each to obtain and swap with each other at least one quote from suitably experienced fencing contractors for removing and replacing the fence along their common boundary with a timber paling fence of a similar height. The fence is to be aligned to existing corner posts of the adjoining fences at each end. The quotes are to assume that all bamboo along the fence will be removed within 300 mm of the boundary. The quotes are to allow sufficient time (at least 7 days) between fence removal and replacement for all bamboo within 300 mm of the boundary to be removed.
Within 90 days of the date of these orders the parties are to engage the contractor with the cheapest quote in (1), or another if they agree, to remove the existing fence and replace it with a timber paling fence of a similar height, or as otherwise agreed. The parties are each to pay 50% of the cost of these fencing works.
Within 7 days of the existing fence being removed, the respondents are to remove, or engage a contractor to remove, all bamboo within 300 mm of the boundary, measured at ground level.
The applicant and the respondents are to allow all access necessary for the fencing works and removal of the bamboo during reasonable hours of the day.
For as long as the bamboo remains, the respondents are to control the bamboo, either by ongoing maintenance or by installing a root barrier, so that no bamboo grows within 300 mm of the boundary fence.
On reasonable notice, the applicant is to allow access to her property during reasonable hours of the day for the respondents to remove any bamboo that grows on her property within 300 mm of the fence.
The parties are granted liberty to relist should governmental Covid-19 guidelines prevent completion of the works within these timeframes.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 23 March 2020
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