Carter v MKTK Pty Ltd

The bamboo

1. A thick hedge of bamboo grows on the respondent's property next to the boundary shared with Ms Carter. Mr Atkins described the bamboo as a 'Common Bamboo', possibly Bambusa vulgaris, 4-5 metres tall. It extends for approximately 15 metres along the boundary covering an area some 3 metres wide. It grows in a courtyard area of the hotel, where it provides visual amenity. The bamboo spreads via underground rhizomes, so that bamboo shoots grow up in Ms Carter's property. Bamboo is a tree for the purposes of the Trees Act.

Reasons for the application

1. Ms Carter seeks removal of the bamboo on the basis that it has damaged, and will cause further damage to, her property. Ms Carter recently renovated her bathroom. During these works, the plumber found bamboo roots inside pipes coming from the bathroom. The presence of roots was not the reason for the works, but Ms Carter says they show that bamboo roots had damaged her pipes. The presence of numerous bamboo roots in the ground below the bathroom increased the time taken for the plumbing works. Dion Camps, a licenced plumber, wrote a brief statement (Exhibit E) for Ms Carter describing the presence of roots and their impacts on the works.
2. Ms Carter is concerned that the bamboo will damage the fence along the common boundary and paving on her side of the boundary.
3. Ms Carter says bamboo shoots grow up throughout her garden, despite her efforts to prevent this by laying weed mat in garden beds.
4. Mr Atkins described these issues in his report, based principally on information provided verbally to him by Ms Carter. Mr Atkins observed weed mat in the garden beds.

Framework for the Pt 2 application

1. The key jurisdictional threshold tests under Pt 2 of the Trees Act are set out at s 10: 10 Matters of which Court must be satisfied before making an order (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 tree is 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 8. (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.
2. Before making any orders as set out at s 9, the Court must consider the matters at s 12 of the Trees Act.

The applicant made reasonable effort

1. The history of communication between the parties includes discussions and emails (included in Exhibit F). Ms Carter has tried to resolve her issues with Mr Keegan, sometimes successfully, as demonstrated by Mr Keegan's actions at times to address those issues. However, after discussions between the parties became acrimonious, Ms Carter found her issues were no longer addressed. Such a breakdown in cooperative communications between the parties is not unusual in tree disputes that come before the Court. Ms Carter's emails show that she still tried to reach some resolution. I am satisfied that her efforts were reasonable.

Pipes

1. The presence of bamboo roots in the ground beneath Ms Carter's bathroom apparently slowed the plumber's works when renewing the sewer pipe. This was described in the plumber's statement and by Ms Carter in her submissions. While this might fit the description of a nuisance, it does not meet the jurisdictional test at s 10(2)(a), set out above, which requires, when considering the past, that the tree - in this case, the bamboo - caused actual physical damage to real property on Ms Carter's land.
2. Ms Carter submitted that bamboo roots were found within the pipes. I accept that this would amount to damage to her property. However, as Mr Kilmurray pointed out, there is no evidence before the Court to support that submission. Furthermore, if such evidence was before the Court, those pipes have now been replaced, and it is unlikely that bamboo roots would damage properly installed pipes within the near future, that being the test for future damage at s 10(2)(a), a period I regard as approximately 12 months as per the principle established in Yang v Scerri [2007] NSWLEC 592 at [14]. Therefore, no orders will be made on this element of the application.

Fence

1. Ms Carter replaced the fence along the common boundary several years ago. The respondent contributed to the cost of the fence. The fence, approximately 3 metres high, consists of solid panels between posts. Here and there the upper fence panels, adjacent to windows of Ms Carter's dwelling, are of a transparent material to allow light to reach the windows. Apart from providing a solid barrier along the boundary, the fence was also constructed to reduce noise impacts to Ms Carter's property from the hotel. Mr Atkins described the fence in his report (on p 6) as follows: "The common boundary fence was replaced in October 2015 and is now a high, modular acoustic wall of Plasterboard and foam panels, plus glass sections at the top to permit light. The acoustic wall has a concrete strip footing."
2. Many of the statements in Mr Atkins report, including the final sentence quoted above, are apparently based on background provided verbally by Ms Carter, rather than Mr Atkins' own site observations. When questioned by Mr Kilmurray on this during the hearing, Mr Atkins answered that he did not know if the fence had a concrete strip footing; rather, his statement had been based on what Ms Carter had told him. Mr Atkins observed no damage to any part of the fence. On the evidence before the Court, I find that fence has not been damaged by bamboo, nor is it likely to be damaged in the near future, so no orders will be made on this element of the application.

Paving

1. The narrow path on Ms Carter's property between the common boundary and her dwelling has a paved surface. The paving is uneven. Although photographs show bamboo shoots are present in a narrow gap between the paving and Ms Carter's dwelling, there is no evidence before the Court that bamboo has damaged the paving, nor that the paving's unevenness is due to the growth of bamboo roots beneath it. Mr Atkins stated under cross-examination that the pavers are placed loosely on the ground and he is unsure of the nature of the ground beneath. Ms Carter submitted that the paving has been laid only temporarily, but will be installed properly in future. I am not satisfied that bamboo has damaged the paving, nor that it is likely to do so in the near future. No orders will be made on this element of the application.

Garden

1. Mr Atkins observed bamboo shoots growing in Ms Carter's property, along the side of her dwelling and in garden beds in her front garden. He also observed weed mat in the front garden. He included in his report photographs showing the location of bamboo shoots and weed mat. When asked by Mr Kilmurray if he observed any damage caused by the bamboo, Mr Atkins conceded that he had seen no damage. He commented that he thought damage was likely within one or maybe two years, but this opinion seemed to be limited to damage to pipes rather than other elements of Ms Carter's property.
2. I accept that the presence of bamboo shoots causes a nuisance for Ms Carter, and certainly the effort required to control their growth and prevent them spreading further in her garden is a nuisance. Nevertheless, the wording at s 10(2)(a) of the Trees Act requires that property on Ms Carter's land must be damaged, or be likely in the near future to be damaged, before the Court can make orders. The mere growth of bamboo, or even its raising or drying of soil, would not amount to damage and so does not enliven the jurisdiction at s 10(2)(a): see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [164]-[166]. I am not satisfied that bamboo shoots growing in Ms Carter's garden have damaged, or are likely in the near future to damage, her property, so no orders will be made on this element of the application.

No orders made for the Pt 2 application

1. Based on the findings above, it follows that no orders can be made for the Pt 2 application.

Reasons for the application

1. As described earlier, transparent panels were used for the upper part of the boundary fence adjacent to Ms Carter's windows. These transparent panels are approximately 900 mm from top to bottom, extending from around 2.1 metres above ground to the top of the fence. Ms Carter described an earlier agreement with Mr Keegan that, where the transparent panels were, the bamboo would be pruned to the bottom of those panels so that it would not cover them and obstruct sunlight. By affidavit (Exhibit 2), Mr Keegan stated that no formal agreement ever existed, but he did respond from time to time to Ms Carter's requests and hedged the bamboo around the transparent panels. Mr Keegan stated that he stopped responding to Ms Carter's requests around the time she applied to the Local Court in February 2020 seeking a noise abatement order. As a result, Ms Carter finds the transparent panels are now covered by bamboo, which obstructs sunlight to her windows.

Framework for the Pt 2A application

1. Key jurisdictional tests for applications made under Pt 2A of the Trees Act are set out at s 14E: 14E Matters of which Court must be satisfied before making an order (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. (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, 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.
2. Before making any orders as set out at s 14D of the Trees Act, the Court must consider the matters at s 14F.

The applicant made reasonable effort

1. I found above at [11] that Ms Carter had made reasonable effort to reach agreement with the respondent. The correspondence referred to there included attempts to resolve the issue of sunlight obstruction. I am satisfied Ms Carter made reasonable effort to resolve issues that led to her Pt 2A application.

Sunlight obstruction

1. The front of Ms Carter's dwelling faces roughly northeast, so the side of her dwelling near the bamboo faces roughly northwest, providing an opportunity to gain solar access throughout the afternoon, especially in winter when it is most valued. When Ms Carter arranged replacement of the fence on the common boundary, she went to the additional effort and expense of including transparent panels in the fence to allow sunlight to reach windows on this side of her dwelling. The bamboo, which Mr Keegan says has been there for at least 33 years, was, at the time Ms Carter replaced the fence, pruned around the transparent fence panels. While Mr Keegan says there was no formal agreement to maintain the bamboo hedge around the transparent panels, I take it there was some discussion and some level of informal agreement, to such an extent that was sufficient to give Ms Carter the confidence to proceed with inclusion of the transparent panels. Afterwards, for a period, Mr Keegan arranged for the bamboo to be pruned around those panels to keep them clear.
2. Ms Carter has not provided shadow diagrams. She was self-represented, and relied principally on Mr Atkins' report and her own submissions. The extent of Mr Atkins' discussion of this issue is found on page 14 of his report: "Bamboo has been permitted to exceed the agreed height and restricts natural light to Ms Carter's property."
3. Ms Carter submitted that the bamboo was cut lower than the transparent panels at the time she replaced the fence, allowing sunlight to reach windows on the north-western side of her dwelling. Mr Keegan, at par 21 of his affidavit, stated that he instructs a garden maintenance contractor to hedge the top of the bamboo level with the fence line. Photographs in Mr Atkins' report show the bamboo extending approximately one metre beyond the top of the 3-metre fence, so it was approximately 4 metres tall when Mr Atkins attended the site on 13 April 2021. Ms Carter submitted that the bamboo obstructs sunlight to her windows, especially where the bamboo covers the transparent fence panels. Mr Kilmurray, solicitor for the respondent, visited Ms Carter's property at midday on 20 August 2021 and took photographs, which are attached to his affidavit (Exhibit 1). Mr Kilmurray submitted for the respondent that his photographs show there is no sunlight obstruction, as Ms Carter's windows are in direct sunlight in those photographs. The bamboo appears to have been pruned since Mr Atkins took photographs in April, as Mr Kilmurray's photos show it to be only just above fence height. Ms Carter submitted in reply that the photographs were taken around midday, when the sun is just past its highest point in the sky, so that its light passes between her roof and the bamboo. From a short time later, and then throughout the afternoon, sunlight is obstructed by the bamboo.

Findings

1. I find the bamboo severely obstructs sunlight to two windows of Ms Carter's dwelling. I find Ms Carter's submissions in response to Mr Kilmurray's photographs aptly describe the situation. His photos were taken during the short window of time following midday when the sun has passed far enough westward of its highest point that its light can directly hit these windows (rather than just her roof) but before the bamboo's shadow falls on the windows. As the sun moves further westward, the bamboo would prevent its light directly hitting the windows. The obstruction would then continue throughout the afternoon. This is the only sunlight available to these windows, and indeed the only sunlight available to the rear part of Ms Carter's dwelling. Were it not for the bamboo, these windows would receive several hours of afternoon sunlight, partly enabled by the fence's transparent panels.
2. In Mr Kilmurray's August photos, the bamboo is around the height of the fence. In Mr Atkins' April photos, it is approximately one metre taller. It follows that the window of time during which direct sunlight reaches these windows was longer in August than in April. That time window is unquantified in either situation, but would clearly be a very limited period when the bamboo is 4 metres tall.
3. Although there have been periods when the respondent arranged for the bamboo to be pruned around the transparent panels, the general state of affairs has recently been that it grows over and obstructs the panels. By Mr Keegan's own statement (Exhibit 2, pars 24, 25) he stopped responding to Ms Carter's requests to prune the bamboo in early 2020. Furthermore, while the bamboo might have been closer to 3 metres tall at the time of the hearing, it was ~4 metres tall earlier in the year. I found in Steber v Job [2019] NSWLEC 1308 that the Court should consider the ongoing state of affairs when determining the severity of sunlight or view obstruction at a 14E(2)(a) of the Trees Act, rather than just a snapshot of the situation on the day of the hearing. With this in mind, I find that the bamboo has severely obstructed sunlight to Ms Carter's windows, and will continue to do so - therefore, it is causing a severe obstruction of sunlight.

Matters at s 14F

1. I have considered the matters at s 14F of the Trees Act and discuss those that are relevant below.
2. The bamboo is close to the boundary, growing up against the fence, less than a metre from Ms Carter's dwelling. Above the fence, the bamboo overhangs the boundary. Bamboo also spreads into Ms Carter's property, with shoots coming up on her side of the fence.
3. The bamboo has been here for more than 30 years. It was at least 3 metres tall when Ms Carter purchased her property in 2014. When the boundary fence was replaced the bamboo was pruned around the fence's transparent panels. Part 2A of the Trees Act was intended to provide relief to those who have lost access to sunlight or views: see McDougall v Philip [2011] NSWLEC 1280 at [21]-[24]. I am satisfied that Ms Carter had access to sunlight that is now obstructed by bamboo - she is not seeking access to sunlight that was always unavailable to her.
4. On my reading of the controls at clause 5.03.01 of the Newcastle Development Control Plan 2012, the respondent could prune or remove the bamboo without requiring consent from Newcastle City Council, due to its proximity to a dwelling and the small size of each individual stem.
5. The bamboo provides a screen along one side of the respondent's courtyard, softening and greening the landscape. Beyond this, the bamboo provides little benefit to public amenity or to local environmental values.
6. The bamboo can be pruned without adversely affecting its future growth or long-term viability. It has been pruned and maintained as a hedge in the past, including hedging around the transparent fence panels. Mr Kilmurray submitted that hedging the bamboo around the panels was, and would be, unsightly.
7. During the afternoon, bamboo is the principal cause of sunlight obstruction to Ms Carter's windows.
8. Ms Carter has taken steps firstly to maximise her sunlight access by installing transparent panels in the fence, and secondly to continue this benefit by negotiating with Mr Keegan to maintain the bamboo clear of those panels, at least for a period. The Court has limited information regarding other issues and the breakdown of discussions between the parties, and the changing nature of their relationship, but I am satisfied that Ms Carter has done what she can to achieve her desired outcome on the issue of the bamboo.
9. Mr Keegan responded positively to Ms Carter's requests for some years. He arranged for his gardening contractor to hedge the bamboo around the transparent fence panels and to remove bamboo shoots from within Ms Carter's property. To me, his actions demonstrate that he acknowledges the potential nuisance caused to Ms Carter by the bamboo. He ceased these actions some time in 2020 when Ms Carter began other proceedings relating to noise abatement. Thereafter the nature of communications between the parties turned acrimonious. Allowing for the possibility that the Court might find the bamboo causes a severe sunlight obstruction, the respondent proposed alternative orders, which Mr Kilmurray said were more than enough to deal with the dispute. Proposed alternative orders for the Pt 2A application are as follows: "1. The respondent is to cut the bamboo hedge in line with the fence line, which is situated on the eastern boundary of the respondent's property, monthly. 2. Maintenance in respect of Order 2 [sic - "Order 1" probably intended here] will commence 7 days after the date of these Orders."
10. The respondent also proposed alternative orders for the Pt 2 application, including installation by the respondent of a root barrier along Ms Carter's side of the boundary, and ongoing monthly removal by the respondent of bamboo shoots within Ms Carter's property.
11. Adduced evidence regarding the duration of sunlight obstruction is limited. Mr Kilmurray's photographic efforts to demonstrate that the obstruction is minimal were not persuasive, given the time of day at which he took those photographs. To some extent, the situation is self-explanatory: the bamboo forms a tall dense screen only a metre from Ms Carter's northwest-facing windows. Above approximately 2.1 metres, being the height of the bottom of the transparent panels, there is nothing else causing the obstruction. Ms Carter pointed out that the building on the respondent's property is a significant distance to the west. I find the bamboo would obstruct sunlight to these windows for several hours each afternoon, including during the cooler seasons when the sunlight is most desired. The bamboo is evergreen, so its screening effect is persistent throughout the year.
12. It appears that the windows to which sunlight is obstructed are to a bedroom and bathroom of Ms Carter's dwelling. They are the only windows along this side of the dwelling. The northeast-facing front of the dwelling is narrow; the dwelling's eastern side is close enough to the neighbouring dwelling to the east that only limited, if any, sunlight would enter the dwelling on that side. I accept that the sunlight obtained through the two windows in this application is highly valued by Ms Carter. This is supported by her efforts to maximise sunlight access when replacing the fence. Sunlight through these windows is the main source of natural light to the back section of her dwelling.
13. Considering the above, and weighing the benefits of making orders to Ms Carter against the possible drawbacks to the respondent, I find orders should be made to restore solar access to Ms Carter's windows. I have given considerable thought to the nature of those orders. My reasons for reaching the final orders are set out below.
14. The bamboo provides a tall dense screen requiring regular ongoing pruning, or removal, to prevent the severe sunlight obstruction recurring.
15. Despite Ms Carter's application for orders to remove the bamboo, I accept the respondent's argument that it provides them with significant amenity, as it has done for many years.
16. Retaining the bamboo, while preventing a severe sunlight obstruction, will require initial and ongoing effort for the respondent, which some might find onerous. The respondent has expressed a willingness to undertake such effort by submitting their proposed alternative orders. Pruning every three months should maintain most of Ms Carter's solar access.
17. Regular pruning can maintain the bamboo's height. Pruning it to fence height would minimise bamboo shoots overhanging the boundary fence but would not remove the bamboo's obstruction of sunlight through the transparent fence panels. Minimising the obstruction can be achieved two ways: firstly, by reducing the bamboo's height; and secondly, by increasing its horizontal distance from the fence's transparent panels. Mr Kilmurray submitted that pruning the bamboo around the transparent panels, while maintaining the remainder of the bamboo at fence height, would be unsightly. I accept this. To me, a better outcome would be to prune the whole hedge in the one manner, even those parts not obstructing sunlight to the windows. Such an approach has been taken by the Court previously, for instance in Moss v Taylor; Morgan v Taylor; Toisuta v Taylor; Slim v Taylor [2019] NSWLEC 1215. The best outcome here would be to prune all the bamboo to the height of the bottom of the transparent fence panels. The impact of regrowth between pruning events could be minimised by also clearing bamboo that is closest to the fence.
18. Bamboo shoots growing up on Ms Carter's property, if left to grow, would eventually contribute to the sunlight obstruction. The respondent proposed alternative orders for monthly removal of such shoots under the Pt 2 application, but I found no basis for making orders under Ms Carter's Pt 2 application. With the bamboo's benefits falling almost entirely to the respondent, it seems unreasonable for the respondent to expect that Ms Carter regularly removes bamboo growth in her own property to prevent it growing and obstructing sunlight. While the respondent might be willing to deal with the issue, as expressed in their Pt 2 proposed alternative orders, I am reluctant to make orders requiring ongoing regular access for the respondent or their contractor to the applicant's property, given the nature of the relationship between the parties. For this reason, I prefer the respondent's own suggestion that a root barrier be installed.
19. The respondent suggested that a root barrier, if needed, could be installed on Ms Carter's property alongside the boundary fence for the length of the bamboo. I find that locating the root barrier on the respondent's property is to be preferred. Again, this avoids the need for access to Ms Carter's property during its installation and also for its future maintenance. Installing a root barrier on the applicant's side of the fence would require that bamboo be removed within 500 mm or so of the fence. Not only would that allow access to this area for installing the barrier, it creates some distance between the bamboo and the fence, minimising the potential for sunlight obstruction between pruning events. Maintaining this cleared area along the fence will also provide access to assist with ongoing pruning of the hedge and for future maintenance of the root barrier.
20. As a result of the orders below, bamboo is unlikely to spread from the respondent's property into Ms Carter's property. However, Ms Carter will be responsible for removing any existing bamboo on her property and for removing or controlling any bamboo that grows on her property in future.

Orders

1. As a result of the foregoing, the Court orders: 1. The Pt 2 application is refused. 2. The Pt 2A application is granted to the extent of the following orders. 3. Within 60 days of the date of these orders, the respondent is to remove all bamboo that, at ground level, is within 500 mm of their eastern boundary fence on the common boundary shared with the applicant. 4. Within 60 days of the date of these orders, the respondent is to install a root barrier to a depth of at least 600 mm, 400-500 mm from their eastern boundary fence, extending for the length of the bamboo hedge and a further 2 metres beyond each end of the hedge. 5. Within 60 days of the date of these orders, the respondent is to prune the bamboo hedge to reduce its height to no greater than 2.1 metres. 6. Thereafter, beginning May 2022, every three months (every May, August, November and February), the respondent is to: 1. prune the bamboo to reduce its height to no greater than 2.1 metres; and 2. remove any bamboo regrowth that, at ground level, is within 500 mm of their eastern boundary fence on the common boundary shared with the applicant. 1. If all bamboo is permanently removed from the respondent's property within 8 metres of their eastern boundary, the above orders lapse. ………………………………. D Galwey Acting Commissioner of the Court

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: 18 January 2022