Atkins v Graham [2024] NSWLEC 1372 | Case summary

Land and Environment Court (NSW)|2024-06-24

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

Background to the application

Robert Atkins (the applicant) has 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 his neighbours Matthew Graham and Bianca Fera (the respondents) to remove two bamboo hedges from their property and to compensate him $382.12 for property damage.
In 2020, Mr Atkins sought orders for the same bamboo hedges pursuant to Pt 2A of the Trees Act, on the grounds that the bamboo was severely obstructing sunlight to windows of his dwelling. I heard that matter on 30 November 2020 and refused the application: Atkins v Fera [2020] NSWLEC 1615 (Atkins).
The hearing in the current proceedings took place onsite, allowing the Court to view the bamboo hedges and both properties. Mr Hanscomb, of Counsel, represented Mr Atkins, while the respondents were self-represented. Mr Atkins provided reports by John Aspinall, architect and director of Urbaine Design Group, and Malcolm Bruce, a consulting arborist. Mr Aspinall's report includes shadow diagrams. Neither Mr Aspinall nor Mr Bruce attended the hearing.

The Part 2A application: obstruction of sunlight

I deal first with the Pt 2A application, wherein the applicant claims the respondents' bamboo severely obstructs sunlight to windows of his dwelling. His application in 2020, made on similar grounds, was refused when I found that there was no severe sunlight obstruction.
Mr Hanscomb submitted that circumstances have materially changed, such that the principle of res judicata would not apply, thereby allowing a new application. Mr Hanscomb referred the Court to Hinde v Anderson and anor [2009] NSWLEC 1148, wherein the Moore SC and Thyer AC considered the doctrine of res judicata and determined that a material change in circumstances might allow the Court to consider a new application under the Trees Act.
Relying on photographs, the applicant argues that the bamboo hedges are now taller and denser than they were in 2020. However the change in circumstances must surely relate to the jurisdictional matters at hand, being, in this case, the obstruction of sunlight to windows, and whether that has changed to the extent that it is now severe. To this end, the applicant relies on a report by Mr Bruce, regarding the bamboo and its height, and shadow diagrams and a report prepared by Mr Aspinall.
As became evident during the onsite hearing, the Court cannot rely upon the conclusions in those reports.
Firstly, the bamboo is shorter than Mr Bruce stated, and significantly so. Mr Bruce described (p 3 of Exhibit F) the western hedge as being "…mainly 8.5 metres in height with individual shoots over 9 metres." Bamboo in the eastern hedge he described as being "…between 7 and 8 metres in height." Mr Bruce claimed to have used an inclinometer to measure the bamboo's height.
At the outset of the onsite view, I pointed out that the bamboo could not be so high, relying on adjacent structures such as the fence and a garage for reference. I estimated the solid screen of the western hedge to be 5 metres in height, with several narrow culms reaching to 8 metres, and the eastern hedge to be 5 metres tall. Mr Hanscomb suggested that Mr Bruce most likely measured from ground level on the applicant's land, which is lower than the respondents' land. I note that the difference in ground level between the two properties is not so significant. Furthermore, Mr Bruce included a marked up photo at Figure 2 of his report showing the base of his measurement to be well above the applicant's ground level.
Secondly, Mr Aspinall may or may not have relied upon Mr Bruce's findings regarding hedge height, as he presents conflicting methodologies in his report (Exhibit E). At par 10 of his report, he wrote: "10. I have read the Consultant Arborist's report, with regard to the health and potential maximum height of the bamboo and this information has been incorporated into our assessment, with 2 heights shown and noted accordingly."
Then, at pars 11-13, Mr Aspinall wrote: "11. Urbaine Design Group attended the site at No.2, Adelaide Street and undertook a 3D drone scan of the existing site, including the bamboo and both houses. 12. This drone scan method is used widely by Urbaine, within the Land and Environment Court and is widely accepted by Commissioners. 13. From the 3D drone scan, Urbaine was able to determine the height and detailed elements of the bamboo and use 30 Studio Max software to generate shadow diagrams for mid-winter for hours between 0900 and 1500."
Either way it was clear from onsite observations that the shadow diagrams are far from accurate. They show the hedges' shadows reach well across the footprint of Mr Atkins' dwelling, so that they obstruct the full height of the north-facing windows of his living areas at the winter solstice. With the onsite hearing beginning at 1:00 pm three days after the winter solstice, the Court could observe the real impacts of the bamboo. The hedges' shadows reached only to the very bottom section of the window - a very different picture to that presented by Mr Aspinall for 1:00 pm.
Mr Hanscomb submitted that the Court should find that the obstruction is severe due to the potential height of the bamboo, and the obstruction that it would cause at that height. But there is no evidence to suggest that the hedge has ever been taller than it is now, nor that there has ever been a severe sunlight obstruction to windows. The Court cannot make orders based on some as yet unrealised sunlight obstruction.
Section 14E(2) of the Trees Act demands that the Court must not make an order unless it is satisfied that the trees are causing a severe obstruction of sunlight to the applicant's windows. It is plain that the trees are not causing a severe obstruction of sunlight, so the Court cannot make any orders under Pt 2A. Furthermore, the situation has not materially changed since the Court refused the application in 2020, so the principle of res judicata does apply here.
It follows that there is no need for the Court to consider the matters at s 14F of the Trees Act, including the benefits of the bamboo and its contribution to privacy.

The Part 2 application: property damage

Mr Hanscomb put to the Court that Mr Atkins' 2020 application was made pursuant only to Pt 2A of the Trees Act, therefore the current Pt 2 application is entirely a fresh application. I wrote at [3] of Atkins: "3 Mr Atkins wants the bamboo removed for two main reasons: it obstructs sunlight to his dwelling and it damages his property. His application is only made under Pt 2A of the Trees Act, where orders can address trees in hedges obstructing sunlight or views. To address any issues relating to property damage or injury, Mr Atkins would need to file a separate Pt 2 application."
It seems that Mr Atkins' issues with property damage are not entirely fresh. Nevertheless, I consider his Pt 2 application here.
The Court must not make an order under Pt 2 of the Trees Act unless it is satisfied that, in these proceedings, the trees have caused, are causing, or are likely in the near future to cause, damage to Mr Atkins' property (s 10(2)(a) of the Trees Act).
Mr Atkins claims that debris from the bamboo, being coarse husks and finer material, falls into the pool, causing damage to his pool cleaning equipment. He provided invoices for replacement parts for his pool vacuum. He showed the Court material removed from his pool filter and pump.
I accept that debris from the bamboo falls into Mr Atkins' pool. The situation is no different to that found in many suburban gardens where pools and trees are in close proximity. Debris is to be expected. As per the Court's principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker), it is reasonable to expect property owners to undertake maintenance, including the cleaning up of debris from trees. Mr Atkins' pool equipment is, no doubt, subject to normal wear and tear, requiring parts to be replaced. But if I accept that Mr Atkins has had to replace parts of his pool's cleaning equipment due to damage from bamboo debris, I find that such maintenance of his cleaning equipment is nothing out of the ordinary and should be considered reasonable property maintenance. I would not make orders on this element of his application.
Mr Atkins has had to remove debris from stormwater drainage pipes around his pool. Again, this seems to be reasonable property maintenance falling within the bounds of the principle in Barker.
Mr Atkins claims that overshadowing from the bamboo causes moss and mould to grow on the brick wall on the common boundary and on brick paving, and it prevents plants growing in his western garden bed. The principle regarding property maintenance in Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 (at [14]) so that "…the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like." And, while Mr Atkins might find it difficult to grow plants in a garden bed, I do not consider that to amount to damage to his property. No orders will be made on this element of the application.

Conclusion

As a result of the above, the Court cannot make orders under either Pt 2 or Pt 2A of the Trees Act in these proceedings.

Orders

The Court orders: 1. The Part 2 application is refused. 2. The Part 2A application is refused. 3. The exhibits are returned, other than exhibits A, B and C.

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13. From the 3D drone scan, Urbaine was able to determine the height and detailed elements of the bamboo and use 30 Studio Max software to generate shadow diagrams for mid-winter for hours between 0900 and 1500."

Either way it was clear from onsite observations that the shadow diagrams are far from accurate. They show the hedges' shadows reach well across the footprint of Mr Atkins' dwelling, so that they obstruct the full height of the north-facing windows of his living areas at the winter solstice. With the onsite hearing beginning at 1:00 pm three days after the winter solstice, the Court could observe the real impacts of the bamboo. The hedges' shadows reached only to the very bottom section of the window - a very different picture to that presented by Mr Aspinall for 1:00 pm.
Mr Hanscomb submitted that the Court should find that the obstruction is severe due to the potential height of the bamboo, and the obstruction that it would cause at that height. But there is no evidence to suggest that the hedge has ever been taller than it is now, nor that there has ever been a severe sunlight obstruction to windows. The Court cannot make orders based on some as yet unrealised sunlight obstruction.
Section 14E(2) of the Trees Act demands that the Court must not make an order unless it is satisfied that the trees are causing a severe obstruction of sunlight to the applicant's windows. It is plain that the trees are not causing a severe obstruction of sunlight, so the Court cannot make any orders under Pt 2A. Furthermore, the situation has not materially changed since the Court refused the application in 2020, so the principle of res judicata does apply here.
It follows that there is no need for the Court to consider the matters at s 14F of the Trees Act, including the benefits of the bamboo and its contribution to privacy.

Mr Hanscomb put to the Court that Mr Atkins' 2020 application was made pursuant only to Pt 2A of the Trees Act, therefore the current Pt 2 application is entirely a fresh application. I wrote at [3] of Atkins:

"3 Mr Atkins wants the bamboo removed for two main reasons: it obstructs sunlight to his dwelling and it damages his property. His application is only made under Pt 2A of the Trees Act, where orders can address trees in hedges obstructing sunlight or views. To address any issues relating to property damage or injury, Mr Atkins would need to file a separate Pt 2 application."

It seems that Mr Atkins' issues with property damage are not entirely fresh. Nevertheless, I consider his Pt 2 application here.
The Court must not make an order under Pt 2 of the Trees Act unless it is satisfied that, in these proceedings, the trees have caused, are causing, or are likely in the near future to cause, damage to Mr Atkins' property (s 10(2)(a) of the Trees Act).
Mr Atkins claims that debris from the bamboo, being coarse husks and finer material, falls into the pool, causing damage to his pool cleaning equipment. He provided invoices for replacement parts for his pool vacuum. He showed the Court material removed from his pool filter and pump.
I accept that debris from the bamboo falls into Mr Atkins' pool. The situation is no different to that found in many suburban gardens where pools and trees are in close proximity. Debris is to be expected. As per the Court's principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker), it is reasonable to expect property owners to undertake maintenance, including the cleaning up of debris from trees. Mr Atkins' pool equipment is, no doubt, subject to normal wear and tear, requiring parts to be replaced. But if I accept that Mr Atkins has had to replace parts of his pool's cleaning equipment due to damage from bamboo debris, I find that such maintenance of his cleaning equipment is nothing out of the ordinary and should be considered reasonable property maintenance. I would not make orders on this element of his application.
Mr Atkins has had to remove debris from stormwater drainage pipes around his pool. Again, this seems to be reasonable property maintenance falling within the bounds of the principle in Barker.
Mr Atkins claims that overshadowing from the bamboo causes moss and mould to grow on the brick wall on the common boundary and on brick paving, and it prevents plants growing in his western garden bed. The principle regarding property maintenance in Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 (at [14]) so that "...the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like." And, while Mr Atkins might find it difficult to grow plants in a garden bed, I do not consider that to amount to damage to his property. No orders will be made on this element of the application.

As a result of the above, the Court cannot make orders under either Pt 2 or Pt 2A of the Trees Act in these proceedings.

(1) The Part 2 application is refused.

(2) The Part 2A application is refused.

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

(Disputes Between Neighbours) Act 2006

Atkins v Graham

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