Namat v Bargenda

[2022] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation:

Namat v Bargenda [2022] NSWLEC 1309

Hearing dates:

3 May 2022

Date of orders:

16 June 2022

Decision date:

16 June 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

Orders at [87].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – is bamboo hedge severely obstructing views – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – contemplation of orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Dividing Fences Act 1991

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

Trees (Disputes Between Neighbours) Regulation 2019, reg 4

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Dias v Vaswani [2011] NSWLEC 1274

Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285

Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122

Prowse & anor v Porter & anor [2016] NSWLEC 1135

Robinson v Nagle [2021] NSWLEC 1356

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

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Tooth v McCombie [2011] NSWLEC 1004

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

NSW Department of Justice and Attorney General, Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW), (November 2009)

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

Category:

Principal judgment

Parties:

Sargon Ibrahim Namat (First Applicant)
Daizy Kazzi (Second Applicant)
Andrew Bargenda (First Respondent)
Pina Bargenda (Second Respondent)

Representation:

Counsel:
Vanessa O’Bryan (Solicitor) (Applicant)
A Bargenda (Self-represented) (First Respondent)
P Bargenda (Self-represented) (Second Respondent)

Solicitors:
Longton Legal (Applicant)

File Number(s):

2022/35524

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Sargon Namat and Daizy Kazzi, the applicants, live in Pagewood, a southern Sydney suburb. They share a side boundary fence with Andrew and Pina Bargenda, the respondents. The applicants’ property is located to the east of the respondents’. The area is well vegetated and it does not appear uncommon for trees to encroach on neighbouring properties.

2. The subject of the dispute is a row of Bambusa textilis ‘Gracilis’ (Slender Weaver’s Bamboo) (the bamboo), planted in a narrow, raised garden bed close to the common boundary in the respondents’ rear yard. For the purposes of the Trees (Disputes between Neighbours) Act 2006 (Trees Act), the Trees (Disputes Between Neighbours) Regulation 2019, reg 4 prescribes bamboo to be included within the definition of ‘tree’.

3. Mr Namat and Ms Kazzi submitted an application, pursuant to s 7 of Part 2 of the Trees Act seeking pruning, and also pursuant to s 14 of Part 2A of the Act, where they seek to remedy a severe obstruction of a view caused by the bamboo hedge.

On site hearing

4. The bamboo was inspected from both properties, prior to submissions by the parties.

5. The proposed orders for the Pt 2 application are;

“1. The respondent to prune the group of trees which are the subject of the application to the height to 2.5 metres to prevent further damage to property.

2. The respondent to maintain, at its own costs, the height of the group of trees which are the subject of the application to no taller than 2.5 metres to prevent further damage to property.

3. The respondent to prune the group of trees which are the subject of the application to the height to 2.5 metres to prevent injury to any person.

4. The respondent to maintain, at its own costs, the height of the group of trees which are the subject of the application to no taller than 2.5 metres to prevent injury to persons.

5. The respondent to repair, at its own costs, the damage to the dividing fence.

6. Any other orders the Court deems necessary.

7. Costs.

8. During the hearing, the applicants proposed an additional alternative order of bamboo removal.”

6. The proposed orders for Pt 2A application are;

“1. The respondent to prune the group of trees which are the subject of the application to the height to 2.5 metres to remedy severe obstruction of view.

2. The respondent to maintain, at its own costs, the height of the group of trees which are the subject of the application to no taller than 2.5 metres to prevent severe obstruction of view.

3. Any other orders the Court deems necessary.

4. Costs.”

7. In their Tree Dispute Claim Details, the applicants claim that the bamboo branches fall and cause rubbish and potential injury, and that the bamboo moving as a unit under the force of high winds could potentially break the fence,

8. 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 applicants’ property. They claim it has not damaged the dividing fence.

Jurisdictional requirements – Part 2A

9. Clarity will be gained by initially addressing the claim pursuant to s 14 of Part 2A of the Trees Act.

10. In Pt 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] – [22].

Do the trees form a hedge?

11. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?

12. Section 14A(1) states:

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).

13. The bamboo is growing in a narrow, raised garden bed, with a masonry front retaining wall, about a metre higher than the level of the respondents’ rear yard. Mr Bargenda said that it was planted in 2017, and many bamboo clumps would have been required to cover the approximate nine metres length of the total planting. Now they average about 6 metres in height. As a consequence, s 14A(1) of the Trees Act is satisfied.

14. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of:

14B Application to Court by affected land owner

(a) sunlight to a window of a dwelling situated on the land, or

(b) any view from a dwelling situated on the land,

if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.

15. As is not uncommon with many tree disputes, negotiations between the parties have been difficult. Following conflict over other issues, where both parties communicated via legal representatives, the applicants have continued to communicate with the respondents about this tree dispute, only through their Solicitor.

16. Nonetheless, the applicants have satisfied the requirements under s 14E(1)(a) of the Trees Act to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. They have included copies of three Solicitor’s letters sent to the respondents between 23 July 2021 and 12 October 2021, and replies from the respondents to the first two.

17. Mr Bargenda submitted that the applicants had not shown any willingness to negotiate or consider a compromise to their claims, but neither of these are necessarily required in order to satisfy s 14E(1)(a).

18. Preston, CJ notes in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (“Robson”), at [192]–[196], that the “reasonable effort to reach agreement with the owner of the land on which the tree is situated” does not need to happen prior to lodgement of an application under the Act or prior to the preliminary hearing of a tree application.

19. At [194] of Robson, Preston CJ observed that “while it is desirable that the discussion takes place prior to commencement of proceedings under the Act, this provision makes it clear that such an attempt must have occurred prior to the making of an order as a result of a hearing of an application, not prior to the making of the initial application to the court”. At [195], his Honour notes the Act’s requirement of “a reasonable effort to reach agreement”, is less demanding on the applicant than “reasonable attempts”, or “all reasonable attempts”, as applies in provisions of other statutory enactments.

Is the view obstruction severe?

20. The next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.

21. Section 14E(2)(a) of the Trees Act states:

14E Matters of which Court must be satisfied before making an order

…

(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.

22. After a period of about four years during which the property was leased to tenants, the applicants demolished their dwelling and constructed a new one. Mr Namat said that the pool was built first, in early 2020, and in their ‘Tree Dispute Claim Details (High Hedges) (Form G), at question 3, the applicants note that when they occupied the new dwelling in 2021, the bamboo had grown to a height in excess of five metres. In his sworn affidavit of 5 April, 2022, at [15], Mr Namat said, “At the time we moved in, the group of trees was approximately over 6 metres in height, having continued to grow since commencing construction work.”

23. During the hearing Mr Namat sought to change this to four metres, but only upon appreciating the significance of the height when the new dwelling was occupied. Therefore, I shall rely on the details supplied in Form G, and in Mr Namat’s affidavit.

24. The Review of the Trees Act (November 2009), at page 35, says; “It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access) which had not existed at the time of purchase”. In this case, one would substitute views for “additional solar access”.

25. Given that this Part 2A application only has jurisdiction and context after the applicants’ occupation of the new dwelling, in terms of the dwelling’s form and position, and its viewing locations, analysis of the severity of view obstruction may only be based on the marginal section of the hedge growing above a height of five to six metres.

26. The rear of the applicants’ dwelling faces south, and thus light to their rear yard is limited, and significantly restricted during winter.

27. In assessing the severity of an obstruction of a view, the Court has often taken guidance from a planning principle on view sharing published in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”).

28. The first three steps of the four-step process in Tenacity are considered relevant to Pt 2A. In summary, the first step considers the nature of the views affected – water views are valued more highly than land views, and iconic views such as the Opera House, the Harbour Bridge or North Head, are particularly valued, whole views are valued more highly than partial views, and the interface between land and water is valued.

29. The second step considers the part of the property from where the views are obtained – views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic.

30. The third step considers the extent of the impact for the whole of the property and not just the view that is affected – the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

31. The view to be gained in absence of the section of the hedge higher than five to six metres, is an area of sky, and more visual access to a Gum tree growing in a third neighbouring property. These benefits are reduced for the rear half of the hedge, due to spreading trees in the properties at the rear of the applicants’ that fill the majority of the view, regardless of the presence of the bamboo.

32. Mr Namat nominated the sky as the view lost and a chair facing south-west towards the hedge in the rear downstairs living room as the position impacted by the view loss. In support, Ms O’Bryan cited Robinson v Nagle [2021] NSWLEC 1356, where at [23], Galwey AC notes;

“In my experience, Tenacity’s first step is sometimes interpreted by practitioners as implying that a view without iconic features – perhaps a view of parkland, or the suburban landscape – does not warrant consideration under Pt 2A of the Trees Act. I do not accept that, as any view might be important to an applicant. Rather, this first step of the view-sharing principle assists with assessing the potential loss of a view, especially the loss of parts of an overall view.”

33. While I concur that “any view might be important to an applicant”, this does not remove the onus on them to prove that the impact of such a view loss is severe. In conducting my analysis with the benefit of Tenacity, the overall view available includes the aforementioned bamboo, sky and neighbouring Gum tree towards the west. At the rear to the south are at least two established trees, and more open sky is available to the east. As a result of the relatively small rear yard and metal panel fences of at least 1.8 m height on all sides of the yard, all potential views require an upward tilted outlook from the rear living area.

34. The nominated views towards and through the bamboo, are gained entirely across the common boundary and the respondents’ property. Noting the second step of Tenacity, “the expectation to retain side views and sitting views is often unrealistic.”

35. While the applicants have noted that tropical clumping bamboo may grow to 15 metres in height, Slender Weaver’s Bamboo has more modest potential proportions. Further, considering Tooth v McCombie [2011] NSWLEC 1004 at paras [14]-[15], the use of the word “are” in s 14E(2)(a)(ii) of the Trees Act requires the trees the subject of the application to be severely obstructing the view at the time of the hearing.

36. The Macquarie Dictionary defines ‘severe’ as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfill. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality.

37. The claimed view lost relates to restriction of sky, absent of specified features, by the section of a bamboo hedge above five to six metres in height, where the average hedge height is currently about 6.5 metres.

38. While it is understandable that Mr Namat desires increased sunlight, particularly to the pool in their south-facing yard, there is no claim in the application regarding obstruction of sunlight, and I am not satisfied that the view obstruction resulting from the hedge is severe. Rather, I would deem it minor. As a consequence, s 14E(2)(a) of the Trees Act is not engaged, thus I have no jurisdiction to make orders, and the applicants’ claim under Part 2A is refused.

39. Even if I had been satisfied that the view obstruction was severe, and thus considered making orders, I must first be satisfied that the obstruction is such that the applicants’ interest in mitigating the issue outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)). The significance of the bamboos’ contribution to the respondents’ privacy, amenity and ambience would thus be considered in s 14F.

Jurisdictional requirements – Part 2

40. With respect to s 7 of the Trees Act, 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.

41. 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.

42. 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.

43. The applicants’ claim covers damage, both current and future, to the 1.8 metre tall, metal panel common boundary fence, a ‘glass balustrade’, and their pool filtration and drainage system, as well as apprehension of injury. 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.

Metal panel boundary fence

44. The applicants claim that the bamboo leans on and exerts pressure on the fence, particularly under the influence of westerly winds. Though they included a photograph showing the fence distinctly leaning during strong winds, at the site inspection, it appeared sturdy, and close to vertical, though Ms Bargenda questioned the quality of its installation.

45. In common with this region of Sydney, the site soil is sandy, and would have been disturbed during construction of the adjacent pool and dwelling. The fact that sandy soils generally provide less strength and stability than clay soils should have been considered in establishing fence foundations of sufficient strength to be fit for purpose.

46. Ms Bargenda submitted that the fence posts were installed to a depth of about 600mm, rather than a depth of 900mm which she claimed was specified in technical product information. This was uncontested by the applicants. She also advised that insufficient concrete was used, and Mr Namat said that the fencer returned and repaired the fence with the addition of a bag of pre-mix concrete in each hole.

47. Regardless of likely residual installation inadequacies, in the section where the bamboo is present, bordering the back lawn and the pool, only minor inconsistencies in the alignment of the fence were apparent. As both parties apparently agreed to employment of the fencing contractors, they are equally responsible for residual inadequacies such as minor mis-alignment, and this may be considered normal wear and tear for an exposed, sail like fence. Thus it is relevant to s 12(i) of the Trees Act, which considers “anything, other than the tree/s, that have contributed, or are 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”.

48. There were no obvious signs of fence denting or damage from the swaying or pressure of bamboo alone, and it appeared that the respondents regularly removed culms growing close to the fence on their side.

44. Rather, the area of the greatest misalignment of the fence was further north between the dwellings, where at least one fence post and attached panels were markedly leaning into the respondents’ property.

Glass balustrade

50. The applicants’ inground swimming pool is located immediately south of their dwelling, parallel and closely adjacent to the common boundary. The last panel in their glass pool fence, which they call a ‘Glass balustrade’, ends perpendicular to the metal boundary fence and about 15-25 mm from it. At the top of this glass panel, the fence has impacted the glass and caused a dent in the metal, and the applicants attribute this to the impact of the bamboo.

51. I am satisfied that “this damage has been caused, or at least exacerbated by the trees, but it is a small and marginal impact only. I am of the opinion that fence movement is to be expected as a result of heavy winds, regardless of the presence or absence of the bamboo, but that the bamboos’ presence is exerting additional force on the fence and exacerbating damage where the fence contacts with the glass panel.

52. However, as the glass panel is installed in such close proximity to the fence, I also accept the respondents’ claim that the primary damage cause is poor design, and this is also considered under s 12(i).

53. Regardless how minor the damage may appear, however, 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.

54. Therefore s 10(2)(a) is satisfied and the Court’s jurisdiction to consider what orders should be made is engaged.

55. Mr Namat, a builder, confirmed that the maximum gap legally allowed at the junction of these fences is 100mm, yet the applicants chose to apply a gap of only 15-25mm, in a location where movement of this tall fence was highly likely. Alternatively, the gap is about 50mm where no movement is anticipated, at the junctions of glass fence panels and stationary veranda posts.

56. Mr Namat submitted that he could choose any size gap, from zero up to 100mm, but the obvious foreseeability of damage to the fence or glass panel resulting from poor design with such a small gap, reduces the respondents’ responsibility and liability for the fence dent. Modification of the glass fence panel, at the applicants’ expense, shall thus be ordered.

57. Both this panel dent damage and the misaligned section of the fence north of the bamboo between the dwellings, shall be subject to orders. The dent is caused both by the respondents’ bamboo, and by the applicants’ ‘poor design’ in locating the glass panel. The misaligned section of the fence north of the bamboo is a residual problem arising from the inadequate fence installation.

58. The Land and Environment Court has jurisdiction to hear and determine matters arising under the Dividing Fences Act1991 (Dividing Fences Act) in proceedings to which this section applies if the application is made under s 7 of the Trees Act, and if the proceedings have been commenced but not determined, and the tree/s that is the subject of those proceedings has caused, is causing, or is likely in the near future to cause damage to a dividing fence.

59. As this situation applies here, consistent with s 7(1) of the Dividing Fences Act (Contribution as between adjoining owners—generally), for both identified elements of fence rectification, the parties shall contribute equally.

Pool filtration and drainage system

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

61. In Robson 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 Trees 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.”

62. 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.”

63. As a result, I am not satisfied that any refuse falling onto the applicants’ land causes damage, and thus the claim covering leaves and other refuse does not invoke the Trees Act’s jurisdiction.

64. In Black v Johnson (No 2) [2007] NSWLEC 513 (“Black”), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.

65. Considering this tree principle in Black, even if damage had been proved as a result of falling refuse, because the trees were in situ prior to the pool, the financial responsibility for any such damage would not necessarily be imposed on the respondents.

66. The applicants also claim that their pool’s PVC drainage pipes and electrical wiring are likely to incur future damage as a result of tree root impact. However, presuming they have been installed to required standards regarding depth and quality of workmanship, I am not satisfied that such damage is likely, and particularly not in the near future. As a consequence, in this respect, the Trees Act is not engaged.

Bamboo spreading into applicants’ property

67. It was evident onsite that about four bamboo culms (stems) have emerged, and grown in the applicants’ property, close to the boundary, and this finding precipitated the additional orders for bamboo removal.

68. In considering bamboo incursion in Dias v Vaswani [2011] NSWLEC 1274 (“Dias”), Galwey AC cites Preston CJ in Robson at [165] to [166], where His Honour discussed the concept of ‘corporeal’ and ‘incorporeal’ components of ‘hereditaments’ of land; ‘incorporeal hereditaments’ being certain intangible rights and ‘corporeal hereditaments’ including the land itself and things attached to it such as buildings and other fixtures as well as plants growing in it. His Honour considered that the reference in s 7 of the Trees Act to “property on the land” may be a reference to ‘corporeal hereditaments’. This interpretation has been adopted consistently in determinations of applications under s 7 Part 2 of the Trees Act. In Dias, at [18] the Acting Commissioner determined that the bamboo had damaged the lawn in that the bamboo prevented the lawn being used for the purpose for which it is intended.

69. In this case, I am not satisfied on the evidence that the respondents’ bamboo has yet caused damage to the applicants’ property, but I am satisfied that if left unchecked, it will cause damage in the near future to the applicants’ lawn, and plants in the adjacent garden bed. As a result, s 10(2)(a) is again satisfied.

70. The respondents stressed that the bamboo is a clumping, rather than rhizomatous, variety that was stable and inherently restricted in growth, and they submitted that it was unlikely to exert marked pressure as a result of root growth. They also noted that they had installed a root barrier near the common boundary at the rear of the raised garden bed to prevent possible incursion into the applicants’ property.

71. While clumping bamboos are generally less invasive than their rhizomatous relatives, their clumps nonetheless progressively grow and spread, particularly into areas where soil moisture and aeration provides growth opportunities. In this case, the current thin black plastic root barrier is insufficiently thick and robust to resist root penetration and subsequent spread.

Risk of Injury

72. The applicants claim regarding risk of injury, particularly at the “pinch point” between their fence and glass panel is set aside. I consider it a low risk that could be mitigated through guidance and access restriction of the children, and it is also a risk of the applicants’ own making, given the poor design informing installation of the terminating glass panel. In any case, this risk will be reduced further by modification of the glass panel to increase the size of the gap between it and the fence.

73. There are no obvious characteristics of the bamboo that arouse risk of injury concerns. While small leaf sheaths may regularly fall, it is rare for stems to break, and the likelihood of genuine injury is minimal.

74. The various injury claims regarding the likelihood of the bamboo pushing the fence over whilst impacted by winds, and subsequently injuring people in the applicants’ property are not soundly based and are unsubstantiated. Overall, the bamboo poses a low and acceptable risk, and therefore all the claims with respect to risk of injury are dismissed.

75. Given that s 10(2) of the Trees Act is engaged, the Court must consider relevant matters set out at s 12.

Section 12 considerations

76. The planter box structure containing the bamboo is located close, and parallel to the shared metal boundary fence. It contains the bamboo effectively for the respondents, but the root barrier installed has not, and likely will not prevent bamboo incursion into the applicants’ property. Bamboo stems may sway into fence contact during strong winds (s 12(a)).

77. Subsection 12(b2) considers the impact any pruning would have on the tree, which in this case is the bamboo. The respondents submitted that they regularly maintained the bamboo, and that it was relatively easy for them to do so. While currently approaching it, I am not convinced that the bamboo has yet reached its maximum height, and with increased height and density, is likely to increasingly contribute to fence damage. This bamboo will generally tolerate pruning with little negative impact, so should the bamboo be retained, its height shall be restricted to 4.5 metres.

78. The respondents submitted that the bamboo contributes to their privacy, landscaping, garden design, and the ambience of their garden (s 12(b3)). Privacy is noted as particularly important, but the bamboo can maintain privacy from the applicants’ overview, even if was pruned to a lower height. (subss 12(b3), (e),).

79. As the bamboo also makes 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 significant loss of other benefits considered under s 12.

Costs

80. With respect to the claims for costs, 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.

Contemplation of orders

81. The respondents note various important benefits that they gain from the bamboo. Nonetheless, their bamboo is spreading into the applicants’ property, and, without intervention is likely to increasingly spread further.

82. As the damage caused by the bamboo is currently very minor, it would be a disproportionate response to exclusively order bamboo removal, as this would result in considerable disadvantage being imposed on the respondents.

83. Having said this, retention of the bamboo, albeit at a reduced height, will require regular monitoring and maintenance and a risk of reoccurring problems with the trees.

84. Should the bamboo be retained, the respondents shall be required to replace their existing inadequate root barrier with a continuous proprietary plastic root barrier, at least 3mm thick and 600mm high.

85. Installation of such a barrier is likely to cause considerable damage to the bamboo, and perhaps impact fence stability. Further, even with an appropriate root barrier, because the bamboo is growing in a sand-based soil in close proximity to the boundary, long term exclusion of bamboo from the applicants’ property is not guaranteed. Roots may breach the boundary both above and below the barrier and would need to be closely and regularly monitored. See Prowse & anor v Porter & anor [2016] NSWLEC 1135, where Fakes C provides extensive commentary on issues encountered with bamboo and root barriers.

86. Therefore, alternative orders will also be made for removal of the bamboo in its entirety, and replacement with shrubs or small narrow domed trees. Orders for a replacement root barrier would not be made in this circumstance, but such replacement plants shall also be maintained at a height below 4.5 metres.

Conclusion

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

1. I have concluded that the bamboo has caused minor damage and is also likely to cause damage in the near future, and the jurisdiction of the Trees Act is therefore engaged.

2. 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.

3. Intervention with the bamboo to minimise 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 of the Trees Act.

4. Alternatively, removal of the bamboo, and replacement with well selected shrubs or small trees is likely to deliver a less expensive, more reliable solution requiring less monitoring and maintenance, but there will be a time period where privacy screening between the properties, an important element for the respondents, is absent or deficient.

Orders

88. The orders of the Court are:

1. Should they wish to retain the bamboo, the respondents shall:

1. within 45 days of the date of these orders, at their expense, excavate the back of the bamboo garden bed, along its entire length, and install an unbroken single strip of proprietary plastic root barrier at least 3mm thick and 600mm deep, behind the residual bamboo, with the top edge of the root barrier protruding approximately 50mm above the soil level along the raised garden bed’s entire length, and with an overlap of at least 300mm beyond the points where the bamboo roots terminate at both ends of the garden bed, and;

2. within 45 days of the date of these orders, at their expense, prune the top of the bamboo hedge down to a maximum height of 4.0 metres(m) above the height of the soil level of the raised garden bed, and;

3. maintain the hedge, at their expense, so that at no time in the future, following the pruning event ordered at (1)(b), shall the hedge exceed a height of 4.5 metres above the height of the soil level of the raised garden bed.

2. Should they not wish to retain the bamboo, the respondents shall:

1. within 45 days of the date of these orders, at their expense, remove all bamboo stems, roots and intermingled soil from the raised garden bed’s entire length, and;

2. should they wish, at their expense, replant the garden bed with shrubs or small narrow domed trees, and;

3. if they plant such shrubs or trees per order (2)(b), maintain them, at their expense, so that at no time in the future shall the hedge exceed a height of 4.5 metres above the height of the soil level of the raised garden bed.

3. Within 45 days of the date of these orders, the applicants, at their expense, shall have the glass pool fence panel (that has impacted and dented the fence) replaced or modified, and installed or re-installed so that the gap between this glass pool fence panel and the metal fence is increased to between 90 and 100mm.

4. Within 28 days of the date of these orders, the respondents shall obtain one quotation from a fencing contractor with all appropriate insurances, for replacement of the fence panel dented by the glass pool fence panel, using the specification described in the applicants’ quotation from Alpha Gardens dated 3 April, 2022 (Exhibit ‘I’ of Mr Namat’s affidavit), and provide this quotation to the applicants. Upon exchanging quotes, if no agreement is reached as to which contractor to use, the cheapest quote is to be selected. The selected contractor shall also quote to repair the unstable post and misaligned fence area to the north of the bamboo, between the parties’ dwellings, and provide a copy to both parties.

5. Within 60 days of the date of these orders, the applicants are to engage and pay for the selected fencing contractor to complete both components of these fencing works per order (4).

6. The respondents are to reimburse the applicants 50% of the total amount for works in order (4) within 14 days of receipt of a PAID tax invoice for the completed works.

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

8. Should access be required for the respondents fencing contractor to quote the works in order (4), or to remove any refuse which falls into the applicants’ property as a result of undertaking works ordered, the applicant shall grant the respondents access, upon receipt of at least 48 hours written notice.

9. All works shall be completed during reasonable working hours.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 16 June 2022