Smyth v Hayim

[2013] NSWLEC 1101

Land and Environment Court

New South Wales

Medium Neutral Citation:	Smyth v Hayim [2013] NSWLEC 1101
Hearing dates:	19 June 2013
Decision date:	19 June 2013
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Regulation 2007
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Kevin Smyth (Applicant) Greg Hayim (Respondent)
File Number(s):	20168 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Introduction

1. Mr Hayim has a narrow screen of bamboo growing around the southern and western perimeters of his rear garden. The bamboo was planted between four and five years ago to provide screening between adjoining properties. His southern (rear) boundary, about five metres in length, is part of his neighbour Mr Smyth's side boundary. The bamboo along this section is close to Mr Smyth's dwelling.

1. Mr Smyth contends that the bamboo is likely to cause damage to his property, or injury to a person, and has applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for removal of the section of bamboo along their common boundary.

1. Mr Smyth does not contend that the bamboo has caused in the past, or is causing in the present, any damage to his property. According to s 10(2) of the Act, before the Court can make any orders to interfere with the bamboo, I must first be satisfied, then, that the bamboo is likely to cause damage to Mr Smyth's property in the near future, or is likely to cause injury to any person.

Evidence presented

1. Much of the evidence, and subsequent submissions, relate to the bamboo's status in a Development Application for Mr Hayim's property approved by Randwick City Council. However, unless the bamboo triggers a jurisdictional reason under the Trees (Disputes Between Neighbours) Act 2006 for interfering with the trees, that issue is irrelevant to this matter.

1. Mr Smyth also presented evidence that the species of bamboo is declared a noxious weed in some municipalities (though not within Randwick City council, apparently). Again, if there are no jurisdictional grounds under the Act to interfere with the trees, such evidence is irrelevant here. A letter from the plant identification counter at the Sydney Royal Botanic Gardens identifies the bamboo as Phyllostachys edulis, which is described as invasive. A letter from Mr Robert Mellor of Eastern Suburbs Horticulture describes the bamboo species as invasive and states: "In my professional opinion, it is clear that that [sic] rapid and vigorous growth of the underground rhizomes associated with the Phyllostachys aurea have the potential, if not already, to cause significant damage to surrounding properties and underground services, including [the applicant's property]."

Onsite observations

1. The onsite hearing allowed for viewing of the bamboo from within both properties, and of Mr Smyth's concerns regarding damage and injury on his property.

1. The bamboo grows in a narrow bed approximately 400 mm wide between the boundary fence and My Hayim's lawn. It is approximately 5 metres tall. Mr Hayim pointed out that there are no bamboo suckers or shoots in his lawn, and there have been none in the period since the bamboo was planted. He also pointed out a metal bar he had installed at fence height, within his property, to restrain the bamboo and, at least to some extent, reduce any overhang of the bamboo into Mr Smyth's property.

1. On his property, Mr Smyth pointed out that the sewer pipe is close to the common boundary and that the bamboo could reach his dwelling when it bends in the wind. There are no bamboo shoots growing on Mr Smyth's property.

Submissions

1. Mr Smyth argues that the bamboo has an invasive root system that is likely to damage the sewer pipe and concrete path on his land. He says that new shoots have grown up between Mr Hayim's metal bar and the fence and this demonstrates how the bamboo is spreading and invasive. Although he says the sewer was damaged in the past, he says he is not sure if that was due to the bamboo.

1. Mr Smyth says that despite an agreement with his neighbour that Mr Hayim would regularly prune the bamboo and maintain its height at 5 metres, this has not always been done. He says the bamboo can sway in the wind and reach his house. He is concerned that it will break his windows.

1. Mr Smyth says that parts of the bamboo could fall onto his property and injure somebody.

1. Mr Smyth says that leaves and debris from the bamboo are untidy and require cleaning up. They fall onto the concrete path alongside his dwelling and into his gutters. He says blocked gutters may damage his dwelling.

1. If the bamboo is not removed, Mr Smyth wants Mr Hayim's gardener to prune it on his side, not just Mr Hayim's side.

1. Mr Hayim says that the lack of any bamboo shoots in his lawn, over a period of nearly five years, demonstrates that this bamboo is not invasive and is unlikely to cause problems. He says he has a gardener prune the bamboo every three months so that it does not become too large. He says his gardener has had difficulty gaining access to Mr Smyth's property for pruning.

Findings

1. Bamboo is a tree according to s 3 of the Act, as it is prescribed by the Trees (Disputes Between Neighbours) Regulation 2007.

1. The bamboo has not caused damage. Based on the evidence and applying my own expertise to the onsite observations, I am not satisfied that the bamboo is likely to cause damage to Mr Smyth's property in the near future, nor am I satisfied that is likely to cause injury to any person. The risk of damage must be more than a possibility, but there is nothing here to suggest that bamboo roots are likely to cause damage within the next 12 months or so, a period found to reasonably represent "the near future" in Yang v Scerri [2007] NSWLEC 592. There are no bamboo shoots growing in the narrow gap between the fence and Mr Smyth's concrete path. There is no evidence of any other damage in the preceding 4-5 years. There is no sign of disturbance to Mr Hayim's lawn, immediately adjacent to the bamboo. There has been no damage to the windows of Mr Smyth's dwelling and nothing to indicate that such damage is about to occur.

1. No part that falls from the bamboo appears to be large enough to cause injury.

1. Regarding debris on the path and in the gutters, the Court clearly stated the following principle in Barker v Kyriakides [2007] NSWLEC 292 at 20:

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

1. None of the issues raised by Mr Smyth satisfies the jurisdictional tests at s 10(2) of the Act. As a result, the application must be dismissed.

Orders

1. The orders of the Court are:

(1)   The application is dismissed.

D Galwey

Acting Commissioner of the Court