Bogan v Serrao

The onsite hearing

1. The hearing was conducted onsite with both parties present. The bamboo in the Serraos' rear garden was inspected initially, after which the Court moved to the Bogans' rear yard to inspect alleged damage, and for the parties' submissions.
2. The applicants' (summarised) proposed Orders are: 1. Removal of bamboo, and replacement with suitable plants if required. 2. Replacement of metal panel fence, with cost equally shared by the parties, except for the fence section damaged by the bamboo, for which 75% of the cost of replacement or repair shall be borne by the respondents. 3. Respondents to pay applicants' legal costs and Court application fee.

Jurisdictional requirements - Part 2A

1. For expediency, the application under Pt 2A of the Act shall be addressed initially. Part 2A of the Act provides a limited jurisdiction and does not assume one should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, before making any orders, the Court is still required to balance the benefits of the trees against the interests of the applicant.
2. Section 14A(1) states: (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).
3. Section 14B enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent either a severe obstruction of sunlight to a window of a dwelling situated on the land (s 14B(a)) or of any view from a dwelling situated on the land, (s 14B(b)) if the obstruction occurs as a consequence of trees to which this part applies. The trees must be situated on adjoining land.
4. Section 14C sets down the requirements for notice of the application to be given to the owner/s of the affected land on which the trees are located.
5. Section 14D specifies the Court's jurisdiction to make orders. The Court may make such orders as it thinks fit to remedy, restrain or prevent the severe obstruction of either sunlight to a window of a dwelling or any view from a dwelling on the occupant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned (s 14D(1)).
6. Section 14E addresses matters of which Court must be satisfied before making an order, as follows: (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 trees are 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 14C.
7. Section 14E(2) of the Act, which is particularly significant, states: (2) The Court must not make an order under this Part unless it is satisfied: (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, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
8. If the Court is satisfied an obstruction is severe, it must consider s 14E(2)(b); this in turn requires consideration of a range of matters under s 14F. If orders are appropriate, the Court then relies on the discretion in the making of orders enabled by s 14D of the Act.

Is bamboo a tree?

1. Bamboo is prescribed as a tree for the purposes of the Act in accordance with s 4 of the Trees (Disputes between Neighbours) Regulation 2014. Bamboo is increasingly being used for hedges and screening in urban areas and is the subject of many applications to the Court under Pt 2A of the Act.

Do the trees form a hedge?

1. The first test under the Act, at s 14A(1) is, are the trees a hedge for the purpose of the Act?
2. The trees were growing relatively close together in a linear configuration, with the appearance of a hedge. The respondents acknowledged they planted clumps of Slender Weaver's Bamboo close to and parallel to the common boundary to regain privacy in their back yard. Mr Bogan claimed the bamboo had reached 7.4 m tall, but it had been pruned by Mr Serrao to a height of 5 - 6 m before the onsite hearing. The appearance of the trees is consistent with the description in Wisdom v Payn [2011] NSWLEC 1012, which, at [45], says: ".... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."
3. Therefore, I am satisfied that these trees are planted (whether in the ground or otherwise) so as to form a hedge, and engage s 14A(1)(a) of the Act.
4. I am also satisfied that s 14B of the Act is engaged as the applicants applied for relief from an obstruction caused by the respondents' bamboo hedge, which I found to be made up of trees to which this Part applies, and which are situated on adjoining land.
5. The requirements of s 14C of the Act have been satisfied, as the applicants provided evidence of notice of service of application documents on both the respondents and Port Stephens Council (Council).
6. While s 14D(1)'s "…as it thinks fit…" allows for a broad range of orders, s 14D(2) lists orders that might ordinarily be appropriate for addressing a severe obstruction of sunlight or a view, including at (a) and (b) the making of orders that would "require the taking of specified action" to remedy, restrain or prevent the obstruction. The Court also has scope to make orders per s 14D(2)(d), which requires the removal of a tree or trees and the replacement of the tree or trees with a different species of tree.
7. Section 14E of the Act covers matters of which the Court must be satisfied before making an order. Section 14E(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
8. Mr and Mrs Bogan, at question 30 of Tree Dispute Claim Details (Exhibit B), provided evidence of engagement with the respondents and requesting pruning or removing the trees since 2021. The applicants noted personally delivering a letter to the respondents, organising letters be sent from their solicitor and seeking assistance towards mediation from a Community Justice Centre. The Serrao's chose not to engage in mediation as they anticipated finding no common ground, and nor are they required to mediate.
9. Nonetheless, this effort by the applicants satisfied s 14E(1)(a) of the Act; to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
10. Section 14E(1)(b) is satisfied as the applicants have given notice of the application in accordance with s 14C.
11. The next step is the principal test under Pt 2A of the Act; to assess the severity of the obstruction of sunlight to a window of a dwelling, or the severity of the obstruction of views from the applicants' dwelling as a consequence of any or all of the trees in the hedge.
12. Section 14E(2)(a) states: (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.

Obstruction of sunlight to a window of a dwelling

1. The applicants' window nominated for assessment faces west towards the common boundary from the rear of the shed. The shed is used for storage and as a workshop. Though it incorporates a toilet and shower, it is clearly a shed, which the applicants acknowledged is not approved by Council for habitation as a dwelling. Consequently, the applicants' nominated shed window fails to satisfy the requirements of s 14E(2)(a) of the Act, so that I have no powers to make orders. Therefore, the application pursuant to s 14B of Pt 2A of the Act is refused.

Jurisdictional requirements - Part 2

1. With respect to s 7, 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.
2. The applicants have satisfied the requirement under s 8(1)(a) of the Act, to provide notice of the application to the respondents and Council. This is the same requirement satisfied at s 14C of Pt 2A of the Act.
3. The applicants have also met the requirements of s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated, as this is the same requirement that was satisfied at s 14E(1)(a) of Pt 2A of the Act.
4. Though negotiation details not related to the Applicants' requirement to satisfy s 10(1)(a) of the Act are mainly irrelevant to the Court, it is pertinent to clarify the characteristics and nature of the bamboo. This issue polarised the parties and the misinformation that fomented conflict here causes similar friction in many tree disputes.
5. There are two main types of bamboo in the urban landscape, which are grouped into rhizomatous or 'running' varieties, and clumping varieties. New culms (stems) of running varieties grow from rhizomes, which are underground stems that spread steadily and extensively wherever environmental conditions allow. It is difficult and often expensive to control and remove.
6. The respondents' Slender Weavers Bamboo is a clumping variety, which does not spread by rhizomes. Instead, new stems shoot from within a clump and emerge close to clump edges, gradually increasing its size. In their Statement of 24 April 2023 (Exhibit 2), the respondents claimed that the applicants' solicitor's accusation of bamboo rhizomes "continually sprouting" on the applicants' land was untrue, "as this is a clumping bamboo and there have been no rhizomes sprouting outside the garden bed". This comment reflects a common misconception, promoted by some bamboo merchants, that the growth of Slender Weavers Bamboo is relatively static and that it lacked the ability to cause damage to surrounding objects.
7. Though Slender Weavers Bamboo is far less problematic than rhizomatous bamboo, it has considerable potential to cause damage to encountered objects such as fences, and thus cause conflict between neighbours. The Court inspects many sites where this species is used, and in a recent instance, a single 13-year-old clump, growing with average soil and environmental conditions, was almost 2 m wide. Where clumps of this species are planted close to boundaries that lack strong barriers to deflect their progress, they will readily spread under fences into neighbouring properties.
8. The next major test that is posed, by s 10(2) of the Act, 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
9. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act.

Damage to fence by bamboo

1. The common metal panel fence was over 25 years old and was exhibiting rust at the base of two posts, and along the top rails. The applicants, without substantiation, claimed the bamboo exacerbated the rust, but the damaged posts were distant from the bamboo, and posts in close proximity appeared relatively undamaged. I was satisfied that the rust was not impacted by the bamboo, but the rusting was hastened by constant exposure to abrasive salt laden winds inherent in the coastal location.
2. I was not satisfied that the bamboo had damaged the fence to date, but I could see where a timber stake, inserted against the fence to impede its movement, had left an abrasion trail on the fence's surface when the fence had been buffeted by the wind-swept hedge against the stake. As the bamboo had established into a dense screen close to the boundary, and was about 5 - 6 m tall, I was thus satisfied that bamboo pressing against and rocking the fence was likely to damage the fence in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.
3. In inspecting the interface between the bamboo and the fence, though bamboo roots and stems were growing close to the boundary, there was no evidence that stems or roots had damaged the fence base. Considering the close proximity of bamboo to the boundary, however, I am also satisfied that stem incursion into the applicants' land is likely in the 'near future'. Under the Act, this is a form of damage, termed a hindrance of corporeal hereditaments.
4. As a consequence of likely near future damage to the fence, and likely incursion of stems in the near future, s 10(2)(a) of the Act is satisfied. While this damage may be minor, nonetheless, 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. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) of the Act, but it can be relevant in determining what orders, if any, should be made.

Discretionary matters - s 12

1. With s 10(2)(a) engaged, in contemplating orders, the Court is required to consider relevant factors in s 12 of the Act, as follows:
2. The trees' roots and stems of the bamboo are located close to the common boundary fence (s 12(a)).
3. Interference with the bamboo does not require separate approval under the Environmental Planning and Assessment Act 1979, the Heritage Act 1977, or the Native Vegetation Act 2003 (s 12(b) and s 12(b1) of the Act).
4. Bamboo generally tolerates pruning, provided sufficient live foliage is retained on each stem. Pruning at a height of 3.5 m for example, would normally have negligible negative impact on the viability of a stem or clump of Slender Weavers Bamboo (at s 12(b2)).
5. The respondents noted the bamboos' contribution to their privacy by limiting oversight from the applicant's land, and to aesthetics, and landscaping (s 12(b3)).
6. Section 12 (h)-(i) covers "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage". As the Court considers that a certain amount of wear and tear is expected to arise with any structure over time, the fence's advanced age and rusting of the steel posts and railings, is accounted for when determining the relative extent to which the bamboo may or may not have caused alleged damage.
7. Section 12(j) considers "other matters as the Court considers relevant in the circumstances of the case." The Bogans' proposed tree removal was heavily based on bamboo leaves and other debris falling or blowing on their soil behind the shed, and on the roof and gutters of their shed, and the associated maintenance burden.
8. In Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152 (Robson), at [171], Preston CJ stated: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind, is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's 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."
9. The related issue of encroachment of branches over neighbouring land is addressed at [56] of Robson where his Honour, discussing the issue of nuisance, states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action" under the Act.
10. As many applications include claims of damage related to tree debris blowing or falling from neighbours' trees, and the excessive maintenance burden so imposed, the Court established the following Tree Dispute Principle, at [20] of Barker v Kyriakides [2007] NSWLEC 292 (Barker): "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: "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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.""
11. This Tree Dispute Principle established in Barker has been consistently applied by the Court and it applied here with respect to all tree debris described by the applicants and observed on their ground surfaces and shed roof.
12. Cleaning of mould and slime associated with tree debris is also accounted for and refused, as the maintenance expectation arising from Barker was extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11] to [14], to include the cleaning of mould and slime. Claims of excessive mould have been a common theme in applications made under Pt 2 of the Act in recent years, during which Australia experienced three successive La Niña weather cycles, resulting in annual rainfall far above average across most of NSW.

Conclusions

1. The application under Pt 2A of the Act was refused as the window to which sunlight was said to be severely obstructed, was in a shed that lacked approval for habitation, and thus was not a dwelling. Consequently, s 14E(2)(a) of the Act was not satisfied.
2. In the Pt 2 application, though the respondents' bamboo had not damaged the common boundary fence to date, the bamboo mass rocking the fence during strong winds is likely to damage the fence in the near future if the bamboo is not constrained. This engaged s 10(2)(a) of the Act, which led to consideration of relevant s 12 elements.
3. Orders will be made for removal of bamboo in close proximity to the fence and erection of a structure behind the bamboo to prevent the bamboo impacting the fence. Orders shall also be made for pruning the height of the bamboo, but not to an extent that may compromise the privacy it affords the respondents. The respondents emphasised the bamboos' contribution to their privacy, which in site context, is a reasonable concern.
4. The Act provides the Court with powers to access the Dividing Fences Act 1991 to resolve fence issues, where the default position is an equal division of the cost of replacement or repair of a 'standard fence'. I was not persuaded by the applicants' claim that the bamboo had exacerbated rusting of the fence but was instead satisfied that age related wear, tear, and rusting were the causes of the fence's deterioration. Though the fence was over 25 years old, it was, nonetheless, still fit for purpose and in serviceable condition. Therefore, orders shall be made for fence repair, rather than replacement, with scope for the cost to be equally apportioned between the parties.
5. The applicants' damage claims regarding bamboo debris falling and blowing onto their shed roof and the ground below, and the related maintenance burden, are refused with consideration of the Tree Dispute Principle established at [20] of Barker. The shed was over 32 years old, and the gutter guard, claimed to be rusted by bamboo leaves, was 13 years old. As with the fence, the Court expects normal wear and tear to impact all structures, and considering the ever-present abrasive salt laden air, there was no evidence of damage to the shed roof or gutters, or the soil surface, that may be attributed to the bamboo. As noted by the respondents, a fair proportion of the debris was from the Broad-leafed Paperbark trees.
6. Even if the bamboo leaves had caused roof damage, such damage could be avoided with regular maintenance, as considered in the Tree Dispute Principle in Barker. While I acknowledge that the maintenance burden is difficult for the applicants, this is a reality that comes with increasing age, when assistance is often required. I was not satisfied that debris from the bamboo, nor the hedge itself, presented an unacceptable fire risk.
7. With respect to the applicants' claim for legal and filing costs, Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before a Registrar, or a Judge.
8. In summary, the bamboo roots and culms will be contained within the respondents' property through the excavation and ongoing maintenance of a vacant trench adjacent to the common boundary, and installation of a structure that arrests the bamboo from impacting the fence. The height of the bamboo shall be reduced without any major negative impact on the respondents' privacy, but the aesthetic contribution of the bamboo will decline. These measures allow for fence repair without the spectre of near future damage and will incidentally result in more sunlight exposure to the respondents' shed window.

Orders

1. The Court orders are: 1. Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo to no higher than 3.4 metres, regardless that the land is slightly sloping. 2. During February of 2024 and during February of each subsequent year, the respondents, at their expense, shall prune the bamboo to no higher than 3.4 metres, regardless that the land is slightly sloping. 3. The pruning works in Orders (1) and (2) shall be undertaken in compliance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. Within 60 days of the date of these orders, the respondents, at their expense, shall remove all bamboo growing within 250 mm of the common boundary fence, including the removal of all roots, and shall dig a trench at least 250 mm wide and at least 200 mm deep along the entire length of the bamboo between the bamboo and the common boundary fence, and leave the trench open. 5. During January and July of 2024, and during January and July of each subsequent year, the respondents shall inspect and maintain the trench and remove any and all bamboo roots or stems that have grown into the trench. 6. Within 60 days of the date of these orders, the respondents, at their expense, shall install 4 vertical 75 mm diameter round treated pine posts on their land, 250 mm from the boundary and at least 600 mm deep, and secure them in the soil with ample concrete to ensure that the posts are strong and rigid in the ground. One post shall be installed at either end of the bamboo stand, and the other 2 posts at even spacings between the end posts. The height of the posts shall be 100 mm lower than the top rail of the common boundary fence. The respondents shall attach steel reinforcing rods, wire, or webbing between each post, 200 mm below the top rail of the common boundary fence, to restrain and prevent any bamboo from growing or emerging on the fence side of the steel reinforcing rods, wire, or webbing between each post, for as long as the bamboo is growing in situ. 7. Within 90 days of the date of these orders, the applicants shall employ a fencing contractor, with all appropriate insurances, to replace the 2 rusted fence posts to a depth recommended by the manufacturer, secure them in the ground with ample concrete and reattach fence panels to the 2 posts. The fencing contractor shall also replace all top plates along the length of the common boundary fence. 8. For the fencing works in Order (7), each party shall procure a maximum of two itemised quotes from fencing contractors with all appropriate insurances and exchange quotes by email within 60 days of the date of these orders. The applicants shall pay for the fencing works in the first instance. Within 7 days of the completion of the fencing works, the applicants shall email the respondents an itemised copy of the paid invoice. Within 7 days of receipt of this paid invoice, the respondents shall reimburse the applicants, by Electronic Funds Transfer, the sum of 50% of the cheapest quote received from one of the fencing contractors, regardless of whether the applicants chose to employ one of the fencing contractors who had provided a more expensive quote. 9. The respondents shall provide all reasonable access for fencing contractors to undertake quotes, and for completion of the fencing works, upon receipt of at least 48 hours' notice by email from the applicants. 10. All quotes and works shall be completed during reasonable daytime working hours.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2023