The Owners Strata Plan No 50747 v Zavetsanos

[2024] NSWLEC 1671

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan No 50747 v Zavetsanos [2024] NSWLEC 1671

Hearing dates:

23 August 2024

Date of orders:

23 October 2024

Decision date:

23 October 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) The respondents are to engage a contractor to carry out the following works within 60 days of the date of these orders, and thereafter in November each year while bamboo in Tree 1 or Tree 2 remains on their property:

(a) Remove all parts of bamboo in both Tree 1 and Tree 2, above and below ground, where the bamboo at ground level is within 600 mm on either side of the dividing fence shared with the applicant;

(b) Reduce the height of the bamboo in both Tree 1 and Tree 2 so that no part of the bamboo is above floor level of the third level balconies of the applicant’s building (‘W3,V3’ in photographs on p 2 of Form G, in Exhibit A, for reference). This can be done by pruning the bamboo at or below that height, or by removing near ground level any culms that extend above that height;

(c) Remove near ground level any bamboo culms in both Tree 1 and Tree 2 that overhang or touch the dividing fence shared with the applicant.

(3) The works in (2) are to be carried out by a suitably insured and qualified arborist or horticulturist (minimum AQF level 3 in arboriculture or horticulture) and must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicant at least one week’s notice of each event of the works in (2).

(5) The applicant is to allow all access necessary for completion of each event of the works in (2) during reasonable hours of the day.

(6) Within 120 days of the date of these orders the respondents are to rectify parts of the dividing fence shared with the applicant where the fence is within 4 metres of any bamboo in Tree 1 and Tree 2. The fence rectification works must ensure the fence is vertical, straight and sturdy, and is a sufficient dividing fence.

(7) Within 120 days of the date of these orders the respondents are to install, between any remaining bamboo in Tree 1 and Tree 2 and the dividing fence, a suitable root barrier to a depth of at least 600 mm, at least 500 mm from the dividing fence shared with the applicant. The root barrier must extend for at least 500 mm beyond each end of the clump. The top of the root barrier must remain exposed above the soil.

(8) The exhibits are returned, other than exhibits A, B, C and D.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring bamboo – damage to property – whether the trees have caused or are likely to cause damage – Pt 2A application – neighbouring bamboo – obstruction of sunlight and views – whether the obstruction is severe

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:

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

Texts Cited:

Leichhardt Development Control Plan 2013

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Statement of Significance for Area 18 Annandale Conservation Area, Inner West Council

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 50747 (Applicant)
Harry Zavetsanos (First Respondent)
Natasha Leist (Second Respondent)

Representation:

Counsel:
R Ashley (Agent) (Applicant)
H Zavetsanos (Self-represented) (First Respondent)
N Leist (Self-represented) (Second Respondent)

File Number(s):

2024/204994

Publication restriction:

Nil

Judgment

Background to the application

1. Harry Zavetsanos and Natasha Leist (the respondents) live at their Annandale property in a Heritage Conservation Area within a General Residential Zone in the municipality of Sydney’s Inner West Council (Council). Their property is surrounded on two sides by a large apartment building belonging to The Owners – Strata Plan No 50747 (the applicant). In two locations in Mr Zavetsanos’ and Ms Leist’s garden, clumps of bamboo grow alongside the common boundary shared with the applicant. A dispute between these neighbours arose when the applicant found that the bamboo obstructed sunlight to, and views from, their property, and also that it damaged the fence on the common boundary. Unable to resolve the dispute through negotiation or mediation, The Owners – Strata Plan No 50747 applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for: Mr Zavetsanos and Ms Leist to prune and maintain the bamboo at a given height; for the respondents to remove bamboo from within the applicant’s property; for the respondents to install a root barrier to contain the bamboo; and for the respondents to repair the boundary fence. The applicant sought an order for costs, which is beyond the power of Commissioners of the Court. The applicant also sought an order for the respondents to reposition CCTV cameras on their property, but there is no jurisdiction under s 9 of the Trees Act to make such an order.

2. The final hearing took place onsite. Mr Ashley acted as agent for the applicant; the respondents were self-represented. The Court observed the trees and relevant parts of both properties. No experts were required at the hearing. Tendered evidence included: the application and other material filed with the Court by the applicant, such as a timeline and records of correspondence; a record of a mediation session conducted by the Community Justice Centres (CJC); an arboricultural assessment report by Tristan Bradshaw, consulting arborist; an affidavit sworn by an occupant of the applicant’s building; and an affidavit sworn by Mr Zavetsanos.

The trees

3. The application relates to two clumps of bamboo, identified in the application (Exhibit A) and in Mr Bradshaw’s report (Exhibit B) as Tree 1 and Tree 2.

4. Tree 1, near the south-eastern corner of the respondents’ dwelling, refers to a clump of Bambusa textilis var. gracilis (slender weavers bamboo) approximately 8 metres tall. At its base, the clump is approximately 1.2 metres wide; its upper foliage spreads out above both properties with a diameter of more than 6 metres.

5. Tree 2, near the north-western corner of the respondents’ dwelling, refers to a clump of Bambusa oldhamii (giant timber bamboo) approximately 15 metres tall. At its base, this bamboo clump is approximately 4 metres long by 1.5 metres wide. Its upper foliage spreads out above both properties with a diameter of more than 10 metres.

6. Both clumps of bamboo are well established and growing vigorously.

The Part 2 application – damage to property

The applicant applied for orders

7. Pursuant to s 7 of the Trees Act, the applicant applied for orders to remedy damage to the boundary fence, and to prevent further damage, as a consequence of the respondents’ bamboo: both Tree 1 and Tree 2.

Orders the Court can make

8. The applicant seeks orders for the fence to be repaired, for bamboo to be removed from its property, and for a root barrier to be installed. Under s 9 of the Trees Act, these are orders the Court may make, but the Court can make orders – those sought or others – as it sees fit to remedy and restrain property damage caused by the bamboo, and to prevent further damage. The Court cannot make orders to relocate CCTV cameras if that would not remedy, restrain or prevent property damage caused by the trees.

Reasonable effort

9. Material filed by the applicant (in Exhibits A, C and E) includes historic correspondence between the parties. The applicant tried to negotiate an outcome. The parties attended a mediation session run by the CJC. The CJC’s Statement of Outcome (Exhibit C) outlined the next steps to be taken by each party. The applicant submitted, and provided supporting evidence demonstrating, that it carried out its agreed actions towards resolving the dispute. The applicant submitted that the respondents did not carry out their agreed actions as per the Statement of Outcome. The applicant submitted that it had no further alternatives to resolving the dispute, other than commencing these proceedings. The evidence supports this submission. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondents (s 10(1)(a) of the Trees Act).

Notice of the application

10. The timeframe set by the Court in these proceedings allowed for the applicant to give notice of the application as required by s 8 of the Trees Act. I am satisfied that the applicant gave the required notice of the application (s 10(1)(b) of the Trees Act).

Bamboo has damaged the applicant’s property

11. The slender weavers bamboo (Tree 1) has displaced the dividing fence on the common boundary. The applicant partly owns the fence. Mr Bradshaw wrote on p 8 of his report:

“The tree has grown against a dividing fence and is placing pressure on the fence distorting it. Threaded steel rods can be seen linking the main posts of the fence… This is providing increased strength to the fence. The foliage from the tree and the new culms lower are pushing the fence. Over time the bamboo will grow under the fence.”

12. At the onsite hearing, I observed the situation described by Mr Bradshaw. The fence is distorted by the bamboo’s growth. Damage is likely to continue. The bamboo has already grown under the fence – I observed several well-developed bamboo culms growing on the applicant’s side of the fence.

13. The upper parts of the taller bamboo culms are close to the applicant’s building. They are tall enough, and flexible enough, to strike the building in high winds, and could cause minor damage to the building.

14. Tree 1 has damaged the dividing fence and is likely to cause further damage to the applicant’s property.

15. The giant timber bamboo (Tree 2) has displaced the timber paling fence on the respondents’ western boundary. This fence, too, is partly owned by the applicant. Mr Bradshaw wrote on p 10 of his report: “Over time as the clump has expanded towards the fence, culms are against the fence and have grown under the fence upwards. The fence can be seen clearly out of alignment. Damage to fence will continue to occur.” Again, my observations at the onsite hearing aligned with Mr Bradshaw’s findings. Culms of Tree 2 have also developed on the applicant’s side of the fence.

16. The upper parts of Tree 2 strike the applicant’s building (Exhibit D) and could cause minor damage to the building during high winds.

17. Tree 2 has damaged the dividing fence and is likely to cause further damage to the applicant’s property.

18. It follows that the Court can make orders at s 9 of the Trees Act for both clumps of bamboo (s 10(2)(a) of the Trees Act). Before determining the application, the Court must consider matters at s 12.

Consideration of relevant matters

19. Both clumps of bamboo are adjacent to the common boundary. Both have spread across the boundary below ground. They are within a few metres of the applicant’s building. Their upper foliage hangs across the boundary close to the applicant’s building.

20. The Leichhardt Development Control Plan 2013 (the DCP) prescribes trees that are protected and that require Council consent to be pruned or removed. The DCP’s list of exempt species at Section C1.14 includes Bambusa species (both Tree 1 and Tree 2) but the exemption does not apply if the trees are located in a Heritage Conservation Area, as these trees are. Both clumps of bamboo are therefore prescribed trees under the DCP, and Council’s consent would ordinarily be required to prune or remove them.

21. When determining an application for consent, Council will consider (Section C1.14, Control C8): “The likelihood of the tree causing property damage. This includes trees renowned for having extensive root systems, which cause damage to footings of houses or, trees that may cause blockages to domestic sewer and drainage lines.” Such consent would not be required for tree pruning or removal works ordered by the Court in these proceedings (s 6(3) of the Trees Act).

22. Pruning or removing culms of bamboo in either clump would impact the bamboo’s appearance but would not prevent the bamboo from regrowing. Now that the bamboo is well established, either clump is likely to recover from the removal of even most of its above-ground growth.

23. The bamboo contributes to the respondents’ landscaping, garden design and privacy. In their submissions, the respondents stressed the importance of privacy provided by the bamboo, particularly Tree 2, which provides some visual screen between parts of the applicant’s building and the respondents’ swimming pool where their children swim. I observed that Tree 2 screens the pool from only some of the building’s apartments. Considering the density of this residential area, it is perhaps unreasonable to expect privacy to all outdoor areas and a swimming pool.

24. From within the respondents’ property, the bamboo softens the bulk of the large apartment building on the adjoining property.

25. In Council’s Statement of Significance for Area 18 Annandale Conservation Area, no particular vegetation on private property is recognised as significant. Heritage values to be retained mostly cover elements of built form, but also include “Green garden space to all residential buildings — an important part of the character of Annandale.” The respondents’ property includes abundant green garden space that would not be significantly impacted by the loss of some of the bamboo.

26. The bamboo makes little contribution to public amenity.

27. Mr Zavetsanos submitted that he maintains the bamboo, removing any problematic culms that might damage the fence. He submitted that he repairs the dividing fence when needed and pointed to other parts of the fence where he had done so. Despite this, the situation I observed at the onsite hearing contradicted these submissions. Large, mature culms in both bamboo clumps grow close to the fence at ground level and against the fence above ground level. The fence is visibly distorted by the growth of bamboo in both clumps and has not been repaired. Both bamboo clumps have been allowed to spread beneath the fence and into the applicant’s property.

28. As an outcome of the mediation (Exhibit C), the respondents agreed to “consult the Inner West Council to determine the action that can be taken to trim the height of the bamboo hedge on their property. If trimming is permitted it will be carried out once per year and to an agreed height and on an agreed date.” The respondents adduced no evidence to show that they consulted Council. The parties were unable to agree on a height. The respondents also agreed to research any impacts the works might have on possums nesting in the bamboo. Again, they provided no evidence of such research. They submitted that possums have nested in the bamboo, but no signs of current nesting activity could be seen during the hearing.

29. As an outcome of the mediation, the applicant undertook to provide historic photographs to assist in determining an appropriate height for pruning the bamboo, and to obtain quotes for pruning the bamboo. Relevant photographs and quotes are included in evidence.

30. The history of correspondence between the parties shows that the applicant has taken steps to reach an agreed outcome, including the actions it agreed to at the CJC’s mediation session. The impression given by the respondents is that they have resisted the applicant’s attempts at reaching an agreed outcome. The respondents did not undertake the actions they agreed to at mediation.

Orders will be made to remedy and prevent damage

31. Considering the matters discussed above, it is appropriate to make orders requiring the respondents to remedy damage caused by the bamboo, and to prevent further damage. To remedy damage, bamboo that touches the fence must be removed and the fence must be repaired. Preventing further damage requires removal of all bamboo within close proximity to the fence – say, within 600 mm at ground level – and installing a root barrier between the remaining bamboo and the dividing fence. Any bamboo that overhangs the boundary line must also be removed to prevent it damaging the fence. The removal of bamboo will extend to any culms on the applicant’s property. These orders are required for both Tree 1 and Tree 2.

The Part 2A application – obstruction of sunlight and views

The applicant applied for orders

32. Pursuant to s 14B of the Trees Act, the applicant applied for orders to remedy and restrain a severe obstruction of both sunlight and views caused by the respondents’ bamboo: both Tree 1 and Tree 2.

Part 2A of the Trees Act applies to the bamboo

33. Both clumps of bamboo consist of multiple bamboo plants, or trees, that are planted so as to form hedges and are more than 2.5 metres tall, so Pt 2A of the Trees Act applies to both Tree 1 and Tree 2 (s 14A).

Orders the Court can make

34. The applicant seeks orders for the respondents to prune both Tree 1 and Tree 2 to reduce their height and then to maintain them with annual pruning at the reduced height. These are orders the Court may make (s 14D of the Trees Act). The Court may make other orders as it sees fit to remedy, restrain or prevent a severe obstruction of sunlight or of a view.

Reasonable effort and notice of the application

35. As per findings above at [9] and [10], the applicant made a reasonable effort to reach agreement with the respondents and gave the required notice of the application (s 14E(1) of the Trees Act).

Trees severely obstruct sunlight

36. The applicant did not provide shadow diagrams, which can assist the Court, so I rely on photographs, my own observations, and common knowledge of the changes in the sun’s angle throughout the day and throughout the year.

37. The thick screen of Tree 1’s foliage is to the east and north of dwellings over four levels of the applicant’s building. These dwellings have windows and balconies facing north. Relying on photographs in Exhibit A and my own observations during the onsite hearing, I conclude that Tree 1 almost completely obstructs all sunlight that would otherwise be available to windows, especially of the lower dwellings, throughout the entire morning and into the afternoon during winter. With reference to the qualitative terms used by Roseth SC in Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140 at [28], the impact of this obstruction is more than moderate but less than devastating – the obstruction is severe.

38. Tree 2’s taller screen of foliage is to the east of dwellings over four levels of the applicant’s building. It obstructs most sunlight that would otherwise be available to the east-facing windows of these dwellings, especially those on the lower levels, throughout most of the morning during winter. This obstruction is severe.

Trees severely obstruct a view

39. Photographs in Exhibit A show the outlook from dwellings, with the clumps of bamboo forming a dense screen across most of the available outlook: for instance, Tree 1 from Unit 7 and Tree 2 from Unit 62. From some of these units, the outlook is principally of the sky and rooftops, while for others, especially those on the upper levels, the outlook includes significant suburban and even CBD and harbour views. During the onsite hearing, the Court observed the view from the roof of the applicant’s building. While that view is more impressive than the view available from dwellings beneath, I accept that the limited outlook that would be available from lower dwellings, were it not screened by the bamboo, is valued by their occupants. Both Tree 1 and Tree 2 severely obstruct a view.

40. Both Tree 1 and Tree 2 severely obstruct sunlight to windows of dwellings on the applicant’s land, and views from dwellings situated on the applicant’s land (s 14E(2)(a) of the Trees Act).

Balancing the parties’ interests

41. The trees’ benefits, and many other matters that the Court is to consider at s 14F of the Trees Act, have been considered above at [19]–[30].

42. The trees have grown to reach a height of 2.5 metres, and then continued to grow to their current heights, during the existence of the applicant’s building and during the period that residents have occupied their dwellings. At Question 10 of Form G (in Exhibit A) the applicant stated that: “All apartments and common areas of 268 Johnston Street were fully refurbished in 2015-16 by the new owners of the building. Subsequently all apartments were taken to market in 2016.” It follows that occupants of several dwellings in the applicant’s building have lost access to sunlight or views that they previously enjoyed.

43. Daniel Delimihalis purchased Unit 68 on 14 October 2016 and lived there from February 2017 until June 2019 and from July 2022 until January 2023 (Exhibit D). Mr Delimihalis’s photograph taken at or around 30 October 2016 (in Exhibit D) shows that most of Tree 2 was no higher than the balustrade of his balcony, which he stated was at the same level as ‘W3,V3’ in the photograph of Tree 2 in Form G. At that time, extensive views were available from Mr Delimihalis’s balcony and morning sunlight reached his window. Mr Delimihalis stated (para 12 of Exhibit D) that Tree 2 now “substantially impairs… his amenity to light and north-easterly views.” My onsite observations confirmed this. Other occupants of the applicant’s building have likewise been affected by both bamboo clumps, some more severely and some less so.

44. The parties have been unable to reach agreement on the height at which the bamboo should be maintained. Outcome 2 from the CJC’s mediation session required Mr Delimihalis to “…provide photos to assist in determining the extent of trimming of the height of the bamboo hedge [Tree 2] that may be appropriate in relation to the views from the third and fourth level apartments.” The photo provided in Exhibit D shows the uninterrupted access to views and sunlight from the third level apartments in 2016.

45. Mr Zavetsanos stated (para 14 in Exhibit 1) that he would consider trimming the bamboo by 2–3 metres, being less than the reduction to the height of the third level balcony sought by the applicant.

46. The respondents described incidents of unagreed pruning by the occupants of the applicant’s building. However, the respondents have not agreed to the pruning proposed by the applicant, nor have they undertaken any pruning themselves to remedy the obstruction.

Orders will be made under Pt 2A

47. Considering all of the above, I find that the applicant’s interests in remedying the sunlight and view obstruction outweigh any matters that suggest the bamboo should be left alone (s 14E(2)(b) of the Trees Act). It is reasonable to make orders to remedy and restrain the severe obstruction of sunlight and views caused by Tree 1 and Tree 2 to several apartments in the applicant’s building. Material in the evidence is sufficient to convince me that pruning to restore sunlight and views to the third level of the applicant’s building is reasonable. Had evidence been available showing the bamboo at a lower height in 2016, pruning to a lower height may have been ordered. To allow for some regrowth of these fast-growing species, the bamboo’s height must be reduced to floor level of the applicant’s third level balconies. This can be done by pruning at or below that height, which would require contractors able to carry out works at height, or by removing near ground level those bamboo culms that extend above that height.

48. At mediation, the applicant had offered to pay for the pruning works. The applicant has since withdrawn this offer and seeks orders for the respondents to pay for the works. It is reasonable that the respondents pay for the pruning and ongoing maintenance of their bamboo.

Conclusion

49. Orders made below are crafted so as to address the issues identified under both Pt 2 and Pt 2A of the application. Orders are made to remedy damage to the fence, to prevent further damage to the applicant’s property, and to remedy and restrain the severe obstruction of sunlight and views for some occupants of the applicant’s property. The respondents are not required to obtain Council’s consent for the works (s 6(3) of the Trees Act).

Orders

50. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondents are to engage a contractor to carry out the following works within 60 days of the date of these orders, and thereafter in November each year while bamboo in Tree 1 or Tree 2 remains on their property:

1. Remove all parts of bamboo in both Tree 1 and Tree 2, above and below ground, where the bamboo at ground level is within 600 mm on either side of the dividing fence shared with the applicant;

2. Reduce the height of the bamboo in both Tree 1 and Tree 2 so that no part of the bamboo is above floor level of the third level balconies of the applicant’s building (‘W3,V3’ in photographs on p 2 of Form G, in Exhibit A, for reference). This can be done by pruning the bamboo at or below that height, or by removing near ground level any culms that extend above that height;

3. Remove near ground level any bamboo culms in both Tree 1 and Tree 2 that overhang or touch the dividing fence shared with the applicant.

3. The works in (2) are to be carried out by a suitably insured and qualified arborist or horticulturist (minimum AQF level 3 in arboriculture or horticulture) and must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondents are to give the applicant at least one week’s notice of each event of the works in (2).

5. The applicant is to allow all access necessary for completion of each event of the works in (2) during reasonable hours of the day.

6. Within 120 days of the date of these orders the respondents are to rectify parts of the dividing fence shared with the applicant where the fence is within 4 metres of any bamboo in Tree 1 and Tree 2. The fence rectification works must ensure the fence is vertical, straight and sturdy, and is a sufficient dividing fence.

7. Within 120 days of the date of these orders the respondents are to install, between any remaining bamboo in Tree 1 and Tree 2 and the dividing fence, a suitable root barrier to a depth of at least 600 mm, at least 500 mm from the dividing fence shared with the applicant. The root barrier must extend for at least 500 mm beyond each end of the clump. The top of the root barrier must remain exposed above the soil.

8. The exhibits are returned, other than exhibits A, B, C and D.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 23 October 2024