Prowse & anor v Porter & anor

[2016] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prowse & anor v Porter & anor [2016] NSWLEC 1135
Hearing dates:	17 March, 6 April 2016
Date of orders:	12 April 2016
Decision date:	12 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted – see [38]
Catchwords:	TREES [NEIGHBOURS] Damage to property; spread of bamboo onto applicants’ land; damage to plants, paving and rockery.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Dias v Vaswani [2011] NSWLEC 1274 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Richard and Robin Prowse (Applicants) Gary Porter and Christine Heberlein (Respondents)
Representation:	Applicants: Mr G Farland (Barrister) Respondents: Mr G Porter and Ms C Heberlein (Litigants in person)   Solicitors: Applicants: Hones Lawyers
File Number(s):	21100 of 2015

Judgment

1. COMMISSIONER:   The applicants own a property in Castle Cove. In 2009 they widened their driveway at the front of their property and reconstructed the garden beds along their eastern boundary, the boundary they share with the respondents.

2. The replacement of the garden beds included the removal of soil and a root mass of rhizomatous bamboo which had moved into their property from the respondents’ garden. The applicants took the advice of their landscape contractor and had installed what they believed to be a root barrier at the back of the garden beds along the existing stone wall along the boundary. The product used is a type of drainage cell not usually used as a root barrier but can be used to assist drainage along vertical and horizontal surfaces. The sandstone garden beds were built and filled with new soil. A watering system was installed and the beds planted with roses and perennials.

3. In their application claim form, the applicants state that for about the last ten years they have attempted to control the bamboo that has entered their property. Apart from cutting and poisoning the shoots themselves, they have employed garden maintenance firms to regularly maintain their garden and remove or treat the bamboo.

4. Sometime in 2015, the applicants stopped treating the bamboo in order seek some resolution of the matter by applying to the Court under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for orders for its removal from the respondents’ property.

5. Since the treatment stopped, the two front garden beds have been almost completely colonised by bamboo and other beds to the north have also been colonised but to a lesser extent. At the rear of their property the bamboo has grown through a garden bed on the northern side of the pool and several culms have grown through the mortar joints in paving as well as between stones in a terraced garden bed/rockery at the rear of their property.

6. The orders sought by the applicants are summarised as:

• Within 30 days the respondents are to remove all bamboo from their property within 3m of the common boundary.

• The removal is to be followed up in 6 months

• The 3m strip is to be maintained free of bamboo at all times and is to be monitored annually and reported by an AQF level 5 horticulturalist.

• The respondents are to pay the applicants the amounts quoted in the accompanying invoices for the undertaking of the removal of the bamboo from the applicants’ property including the excavation and replacement of soil and roots in the front garden beds, the removal of bamboo from other parts of the garden, the repair of the path and terrace, and the replacement of plants from the garden beds.

7. The applicants have obtained quotes of about $21,000 for the proposed works.

8. The respondents do not wish to remove the bamboo as they value it for the screening it provides between the rear of their property and the blank wall of a two storey dwelling to the north-west. They also contend that had a proper root barrier been installed at the rear of the front garden beds when they were built, the problem would not have arisen.

9. The hearing commenced on site on 17 March 2016. The bamboo was inspected from both parties’ properties. The bamboo extends along most of the western boundary of the respondents’ property and is generally confined to within about 2m or so of the common boundary. There is a separate clump of bamboo elsewhere in the front garden.

10. The parties’ properties are located on a generally south-east facing slope. The large lots slope downhill in a roughly north to south direction. The natural topography could be described as a sandstone escarpment, typical of many parts of the Sydney foreshore. The rear of each lot is relatively steep with many obvious sandstone outcrops. The lots have been cut and filled to accommodate dwellings and garden areas.

11. The applicants engaged Ms Catriona Mackenzie, a Consulting Arborist, to attend the hearing and assist the Court. Ms Mackenzie had inspected the applicants’ property on two occasions; on the second occasion she also inspected the bamboo from the respondents’ property and used a 1.2m steel spike to determine the depth of soil to the underlying rock. The purpose of this investigation was to determine the practicality of installing a root barrier along the common boundary.

12. Table 1 of Ms Mackenzie’s report dated 29 February 2016 records the location of six test sites and the depth to the underlying rock. The depths vary from 245mm to 1.2m including one site where rock was not encountered. Relevantly, she states in her report:

10.   The recorded soil depths in these locations (Table 1) suggest a root barrier could be utilised to potentially control bamboo ingress into the site for part of the boundary only. The area where the bamboo is most prolific (i.e.) at the south end facing the street) appears to have underlying rock at a shallow depth, which would preclude effective control.

11.   In saying this, root barriers are only effective if they are routinely maintained, including yearly root pruning to keep lateral growth (which can extend around the ends of a root barrier) in check. Control may also require irrigation on the bamboo side to minimise the need for roots to continue to grow towards a water source, such as that in a tended garden.

12.   I am concerned that there will still be areas of rock within the upper soil profile, despite the apparent adequate soil depths in 5 of the 6 test locations. A root barrier is not likely to work where there are underlying rock floaters and benching. It would be difficult to ensure a good ‘seal’ between the toot barrier and the sandstone rock. As shown in Plate D2, page 6 of the Application (Form H), the bamboo hits a ‘barrier’ and can deflect in any direction possible to continue growth. This may be laterally, downwards, upwards or a combination of those (see attached copy of D2…)

Conclusions

10.   It is quite clear that, if left unchecked, the bamboo will continue to spread through the garden where it can access soil. It will become a dense ‘forest’ of canes and foliage that will eventually out-shade and out-compete more desirable plantings in the site.

11.   Given the rapid growth (height and spread) observed between my first and second site visits (July 2015 and February 2016) on-going damage to structures and plantings is very likely to increase noticeably during the next spring/summer growing season (September – February 2016 [7]).

12.   My observations during my brief inspection of No. 85 [respondents’ property] indicate the bamboo is growing in areas where it is not desired with subsequent cutting and mowing undertaken in an attempt to control its above ground presence.

13.   I still maintain complete removal of the bamboo and follow up control in preference to using a root barrier would be the most effective long-term (and economically sensible) method of addressing this issue.

13. The report includes a sketch plan of the properties and the location of the test sites. During the hearing the parties discussed various options for controlling the bamboo. Given the respondents’ desire to keep the bamboo for privacy and screening, a couple of options for the installation of root barriers were considered. The options were transcribed onto copies of the site plan.

14. Option 1 shows a concrete root barrier from the front boundary to a retaining wall beside a parking bay on the applicants’ land. It was discussed during the hearing that the narrow garden bed behind that retaining wall could be managed by removing any shoots. The concrete root barrier then continues from the northern side of that retaining wall, past the applicants’ pool with a return back onto the respondents’ property at the base of the steep and rocky slope at the ear of their property. The bamboo to the north of that point would be controlled by hand.

15. Option 2 retains the southern concrete root barrier up to the retaining wall. On the northern side of the retaining wall is a return back into the applicants’ land, a continuation of the barrier to the southern end of the applicants’ pool where it returns to the pool wall which supports the cantilevered pool deck. The final section is a ‘wing wall’ perpendicular to the boundary from the northern end of the pool wall along the respondents’ land at the base of the rocky slope.

16. Given the fact that these options would necessitate excavation along parts of the boundary on the respondents’ land and would be costly, the hearing was adjourned to enable the respondents to further consider their options and to engage a builder to advise on both the feasibility of a root barrier and provide a quote.

17. The hearing resumed in Court on 6 April 2016 to allow the respondents to present their preferred option and for final submissions to be made.

18. The respondents obtained a quote of $16,800.00 for the installation of concrete barriers 1m deep and 200mm wide as illustrated in option 2. The quote includes the removal of bamboo where the barriers are to be installed, site preparation and reinstatement, as well as the removal of soil and bamboo from the applicants’ front garden beds and the replacement of the soil with premium garden mix.

19. The supplementary material provided by the respondents (Exhibit 2) which includes the quote, also includes an email from the applicants’ solicitor advising the respondents that access to the rear steps and pathway was effectively denied because of the damage. The respondents stated that this prevented them obtaining any quotes for the repair of those structures.

20. The respondents’ position remains the same: if a proper root barrier had been constructed at the time the new garden beds were created, there wouldn’t be a problem. The respondents proposed an alternative option which is to render the inside boundary/ rear wall of the garden beds, which is currently and obviously permeable to roots, with a high strength render and bonding agent and building it high enough to stop any roots going over the top. Mr Porter, the first respondent, offered to supervise the process to ensure its success. They stress that they value the bamboo for screening and privacy.

21. Mr Farland for the applicants submits that the applicants object to any installation of a root barrier on their land; should a root barrier be ordered, it should be wholly on the respondents’ land. He contends that the applicants’ position remains that the bamboo should be removed from the respondents’ property as it is the source of the problem and this would avoid the unnecessary expense of a root barrier.

22. Apart from questioning the long-term efficacy of a root barrier preventing the growth of any remaining bamboo onto his clients’ property, Mr Farland notes that the respondents’ alternative measures and quotes do not include ongoing monitoring and control nor do they include the replacement of plants from the front garden beds and other elements of the applicants’ claim.

23. In regards to discretionary matters that might be considered under s 12 of the Act Mr Farland presses the fact that bamboo is a noxious weed in the Willoughby local government area and therefore cannot be afforded the same values as other plants, especially given its invasive growth habit. He accepts that the respondents’ enjoy the privacy it provides their property however he contends that other quick growing species could be grown for the same purpose.

Consideration

24. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

25. Injury is not pressed although concerns were raised during the hearing as to the safe use of the rear stairs as a result of the growth of the bamboo through them.

26. In a similar case involving an incursion of bamboo into an applicant’s lawn, Galwey AC in Dias v Vaswani [2011] NSWLEC 1274 cites Preston CJ in Robson v Leischke [2008] NSWLEC 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 Act to “property on the land” may be a reference to ‘corporeal hereditaments’. This interpretation has been adopted consistently in determinations of applications under s7 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.

27. I am satisfied on the evidence that the respondents’ bamboo has caused damage to the applicants’ property including the stairs, rockery and plants in the various garden beds. I am also satisfied that if left unchecked, it will continue to cause damage to the applicants’ property. Therefore s 10(2)(a) is satisfied and the Court’s jurisdiction to consider what orders should be made is engaged.

28. With the benefit of the site inspection, and with the horticultural and arboricultural expertise I bring to the Court, I concur with Ms Mackenzie that given the topography and geology of the site, the installation of a root barrier will be difficult and good contact between the bottom of the barrier and the underlying rock may not be possible.

29. I agree that any root barrier should be confined to the respondents’ property as in Option 1. If such a root barrier were to be installed, it would, by necessity, require the removal of the majority of the bamboo along the boundary in order for anyone to gain access to excavate a trench in order to pour the barrier. It was my observation on the first day of the hearing that, apart from a clump in the front garden, most of the bamboo is within about a metre of the common boundary. The installation of a full root barrier to the north of the retaining wall and past the pool would also require the removal of other vegetation, including a Box Elder, which currently provides some screening.

30. While I accept that the bamboo provides a degree of screening from the two storey dwelling to the north-west, I agree with Mr Farland that there are other options for screening, including the use of non-invasive trees and shrubs. I may be wrong, but my recollection of the site is that most, if not all, of the common boundary is unfenced.

31. Having considered the parties’ positions I find that the bamboo should be removed as sought by the applicants. That is, any bamboo on the respondents’ property, within 3m of the common boundary is to be removed and controlled until such time as there is no regrowth for a period of at least three consecutive years. The reason for this is the demonstrated spread of rhizomes many metres into the applicants’ property and the ability of this plant to grow from sections of rhizomes remaining in the ground. In effect, I concur with Ms Mackenzie’s conclusion that complete removal and follow up control is the most effective long term method of resolving this problem.

32. It is also reasonable that the soil and bamboo root mass and culms be completely removed from the two front garden beds, the soil replaced, and a contribution made for the replacement of plants out-competed by the bamboo. I take Mr Porter’s point that prior to backfilling, as an added precaution, the rear of the beds should be fully rendered. The extent of infestation of the other beds to the south of the applicants’ pool is not so great as to require anything other than manual removal of any rhizomes and periodic maintenance.

33. I agree with the applicants that the rhizomes and culms growing in the terraced garden beds on the northern side of the pool should be removed. This should be done with the least amount of disturbance to surrounding plants and may involve a combination of excavation and on-going cutting and poisoning of regrowth. This will also necessitate the careful and limited dismantling of sections of the path and sandstone terrace/ rockery.

34. The removal of bamboo could be undertaken by an AQF level 3 (Trade level) Bush Regenerator, Landscape Contractor or Horticulturalist. In my view there is no necessity to engage a Diploma level Horticulturalist to monitor and report on the regrowth however, given the ability of bamboo to grow from rhizomes left in the ground, ongoing periodic removal and or cutting and poisoning is necessary.

35. The removal and replacement of the soil and garden beds and the dismantling and reconstruction of the paving and terrace may best be carried out by a landscape contractor.

36. In regards to the replacement plants, I propose a contribution by the respondents of $500.00. There is insufficient evidence of the original plants in the front garden beds to justify the reimbursement of the amount quoted by the contractor.

37. I am satisfied on the evidence that the cost of all works should be borne by the respondents. While I note Mr Porter’s submission in regards to the inadequate root barrier installed by the landscape contractor, this cannot not apply to the incursion of the bamboo elsewhere along the common boundary. At the very least, an attempt was made to limit the spread which has, in time, proven to be unsuccessful.

Orders

38. As a consequence of the foregoing, the Orders of the Court are:

1. The respondents are to engage and pay for an appropriately qualified contractor to remove all bamboo from the respondents’ property for a distance of 3m from the common boundary. In addition, the contractor is to remove all bamboo from the applicants’ property, with the exception of the two front garden beds and the stems growing through the stairs and the nearby terraced garden bed at the rear. For the purpose of this order, bamboo removal on the applicants’ land includes all rhizomes up to the stairs plus removal of stems and rhizomes from the narrow retained garden bed on the eastern boundary, the retained garden beds to the north, the area beneath the pool deck, and from garden beds to the north of the pool up to Deepwater Road. The contractor is to make good the area by replacing any mulch/ surface treatment disturbed during the removal process.

2. By 1 June the parties are to obtain up to two quotes each from an appropriate contractor for the removal of the soil and bamboo from the two front garden beds, the dismantling of the step and nearby section of rockery, the removal of the bamboo from beneath the step and the rockery, the rebuilding of the step and rockery, the rendering of the rear of the front garden beds, and the replacement of soil in the front garden beds. Within this time the parties are to have exchanged quotes and agreed on the contractor. If no agreement is reached the cheapest quote is to be selected. Any other works on the applicants’ land including replanting, mulching and irrigation are to be separately quoted/ itemised and paid for by the applicants.

1. The applicants are to engage and pay for the nominated contractor to carry out the works in (2).

2. The applicants are to provide all reasonable access to all external parts of their property on reasonable notice for the purpose of quoting the works in (1) and (2) and for the safe and efficient carrying out of those works.

3. The works in (1) and (2) are to be carried out between 1 June 2016 and 1 September 2016 by which time they must be completed.

4. The respondents are to reimburse the applicants the agreed amount for the works in order (2) within 21 days of the receipt of a tax invoice for the completed works.

5. Within 21 days of the date of these orders the respondents are to pay the applicants the sum of $500.00 towards the replacement of plants from the front garden beds.

6. The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in (1) by removing/ cutting and poisoning any regrowth of bamboo from the respondents’ property within 3m of the common boundary and from all parts of the applicants’ property (including the front garden beds) every six months commencing from the date the works in (1) are first completed until such time as no regrowth of bamboo has occurred for a period of three consecutive years.

7. The applicants are to provide all reasonable access to all external parts of their property on reasonable notice for the purpose of quoting the works in (8) and for the safe and efficient carrying out of those works.

_______________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 12 April 2016