Doughty v Jamieson

Land and Environment Court (NSW)|2023-06-19|Before: Centre J

Background

COMMISSIONER: Julie Doughty, the applicant, owns and occupies a battle-axe property in Bondi. The living areas in the applicant's ground floor rooms have windows facing north and east. The applicant's north-south front boundary is the rear boundary of the respondent, Kerry Jamieson.
Ms Doughty occupied her property in 1993. In July 2011, previous owners of the respondent's property planted hedges of Bamboo and Strelitzia on their northern, southern, and western boundaries. Ms Jamieson bought the property in 2011, and Steven Albert has tenanted the property throughout her ownership. Until August 2022, the applicant thought that Mr Albert was the property owner and attempted negotiations with him.
Photographs in the application showed luxuriant dense foliage bordering the respondent's garden, dominated by Strelitzias. Ms Doughty claimed the Strelitzias had grown to 9 metres (m) tall, and the Bamboo was 8 m, and that the hedges severely obstructed sunlight to her windows, and her views of the sky.
When Bamboo increasingly encroached into the applicant's garden, Ms Doughty identified Ms Jamieson through a title search and emailed her about the hedge. Ms Jamieson took no action and declined the applicant's proposal for mediation through a Community Justice Centre (CJC).
After a further 6 months without action with the hedge, Ms Doughty made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage caused by bamboo preventing the use of her property, and pursuant to s 14B of Pt 2A of the Act, based on claims that the respondent's trees are severely obstructing sunlight to a window of her dwelling.

Jurisdictional requirements - Part 2A

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 people should have a right to sunlight or views. Even when the jurisdictional tests are satisfied, the Court is still required to balance the benefits of the trees against the interests of the applicant, before making any orders.
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).
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 the part applies. The trees must be situated on adjoining land.
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.
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)).
Section 14E(1) 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.
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.
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?

The first jurisdictional question is whether bamboo is a tree under the Act. Bamboo is prescribed as a tree for the purposes of the Act in accordance with s 4 of the Trees (Disputes between Neighbours) Regulation 2019.

Do the trees form a hedge?

Section 14A(1) tests whether the trees form a hedge for the purpose of the Act. Upon inspecting the respondent's back yard, I found that the bamboo and other trees in the application had been removed. Ms Jamieson said the garden clean out would be followed by landscaping with low growing plants.
Ms Doughty was not satisfied by the depth and thoroughness of the bamboo removal. Bamboo had emerged in the applicant's garden, and once it is finally removed, the applicant did not want reinfestation from bamboo that may have persisted and regrown in the respondent's garden.
Following the garden clean out, the back of the yard's surface comprised only bare soil, which had been lowered by about 150 mm. This suggested a large quantity of soil encrusted roots and stems had been removed. In probing the soil's upper surface where bamboo had previously grown along the rear and side boundaries, I found no residual roots or other vegetation and was impressed by the thoroughness of the works.
In Tooth v McCombie [2011] NSWLEC 1004, the respondents pruned their trees after the application was made and before the hearing. Commissioner Fakes found, at [14], that the use of the present tense in s 14E(2)(a) of the Act implies "at the time of the hearing". "[14] The word 'are' is critical in determining whether the Court has the jurisdiction to make an order. Notwithstanding the wording in s 14B that enables an owner of land to apply for an order to "prevent" a loss of a view, the test in s 14E(2)(a)(ii) does not say "may severely obstruct" and therefore anticipate a loss of a view in the future. The word 'are' implies that the trees must be severely obstructing a view at the time of the hearing."
Ms Doughty submitted that the interpretation in Steber v Job [2019] NSWLEC 1308 ("Steber") should instead apply here as she claimed the circumstances were similar. At [10]-[12] of Steber, Acting Commissioner Galwey said: "[10] Photographs included in the Stebers' application show the situation at the time, or shortly before, they applied to the Court (the date stamp is clearly incorrect as the Stebers' dwelling was not present in 2011). These photos unequivocally show the bamboo to be more than 2.5 metres tall and to form a hedge. This is not disputed by Ms Job, who also stated that she planted the trees (more than one) to make a hedge. [11] Although the bamboo plants were pruned shortly before the hearing, leaving them less than 2.5 metres tall, the Stebers have shown that they are indeed trees that rise to a height greater than 2.5 metres. Had the trees never reached that height, for instance by Ms Job continually maintaining them at a lower height from the time she planted them, then the Stebers would be unable to show that these particular trees rise to a height of at least 2.5 metres. I appreciate that earlier decisions of this Court, including my own, have dismissed applications where trees have been pruned prior to the hearing so that they are less than 2.5 metres tall. However, the Trees Act does not restrict the present tense of 'rise' to a single moment in time. If the trees had not yet reached 2.5 metres but might do so in the future, they do not presently rise to that height. This is discussed in Wisdom v Payn [2011] NSWLEC 1012 at [53]-[59]. If they have reached 2.5 metres in height, they are trees that rise to 2.5 metres, even if they might not do so on the day of the hearing. This interpretation of s 14A is preferred as it promotes the objectives of the Trees Act, a matter discussed at greater length below from [34]. [12] According to s 14A, then, Part 2A of the Trees Act applies to Ms Job's bamboo hedge."
Ms Doughty's photographs of the respondent's hedges much taller than 2.5 m, showed similar circumstances that engaged s 14A of the Act, at [10]-[12] of Steber. The Steber judgment must, however, be considered in its entirety as the Act requires satisfaction of a series of requirements, including severe obstruction of sunlight (or views) at s 14E(2)(a) of the Act. [41] and [42] of Steber says: "[41] Interpreting 'are obstructing' to refer only to the day of the hearing would allow a mischievous or spiteful (dense hedges are sometimes called 'spite hedges') land owner to repeatedly wait for a neighbour's application to the Court before pruning their hedge to avoid any orders being made against them. Such a construction of this section would lead to an outcome that is 'manifestly absurd or is unreasonable', reasons given at s 34(1)(b)(ii) of the Interpretations Act for referring to extrinsic material to determine the meaning of a provision. Interpreting 'are obstructing' to mean a state of affairs now reached, and likely to continue or recur, would be more in keeping with the Trees Act's objective of providing a 'simple, inexpensive and accessible process for the resolution of disputes about trees between neighbours'. For this reason, I prefer this construction of s 14E(2)(a). [42] Where a hedge has been pruned prior to the hearing, this interpretation naturally puts the onus on the applicant to demonstrate that the obstruction was recently severe and that this state of affairs is likely to continue or recur. The Court must be satisfied of this before it can make any order."
Unlike Steber, the respondent's hedges had been entirely removed, rather than pruned. Once the respondent was alerted to the gravity of Ms Doughty's concerns in August 2022, she appeared to have taken initiative to remedy the applicant's issues. There is no reason to doubt the respondent's intention to replant her garden with low growing plants, particularly considering the respondent's submission of quotes, letters, and planting plans from her professional gardeners. As all parts of the 'hedge' trees are gone, I am not satisfied that a severe obstruction of sunlight will recur. Therefore, the interpretation from Steber does not apply here.
The trees were absent so s 14A(1) of the Act was not engaged. Consequently, the Court has no powers to make orders and the application pursuant to s 14B of the Act is refused.

Jurisdictional requirements - Part 2

With respect to s 7 of the Act, 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.
The applicant provided evidence that satisfied s 8 of the Act, requiring notice of the application for orders to be given to the owner of the affected land, and to Waverley Council.
Section 9(1) of the Act details the Court's broad jurisdiction to make orders "as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned."
Section 10(1)(a) of the Act requires the applicant to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.

Did the applicant make a reasonable effort to reach agreement with the owner of the land on which the trees are situated?

The applicant discouraged the planting of bamboo in 2011. Upon the bamboo encroaching onto her land and the bamboo and other plants growing and reducing her access to sunlight, the applicant tried to negotiate and enter mediation with Mr Albert from 2020-2022, under the mistaken belief that he was the property owner, but received little response.
Upon establishing, in August 2022, that Ms Jamieson was the property owner, Ms Doughty contacted the respondent by email, and proposed mediation through a CJC. Ms Jamieson declined mediation and Ms Doughty lodged the application about 6 months later.
While there is no requirement for the respondent, or Mr Albert, to negotiate or engage in mediation with the applicant, the chronology provided by Ms Doughty contained sufficient evidence to satisfy 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.

Damage caused by the trees

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.
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.

Encroaching bamboo

Ms Doughty's first damage claim involved encroachment of bamboo into her garden. Though the bamboo had been removed from the respondent's land, I am satisfied that rhizomes had grown through the soil, and culms (stems) of what was the respondent's bamboo had emerged and grown in the applicant's garden.
This is examined at [164] and [165] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ("Robson"), where Preston CJ states: "[164] The legislative requirement that the damage be to "the applicant's property" and that such property be "on" the applicant's land, restricts the type of property to which the Trees (Disputes Between Neighbours) Act 2006 applies. The concept of "property on the land" may include both corporeal components of land and corporeal chattels or moveables. [165] Conventionally, land includes both "corporeal" and "incorporeal" components or "hereditaments". Broadly, corporeal hereditaments refer to the physical and tangible characteristics of land while incorporeal hereditaments refer to certain intangible rights which may be enjoyed in, over or in respect of land. Corporeal hereditaments include the land itself (the solum), including the soil and rocks which constitute the surface layer of the land, as well as such physical objects that are attached to or part of the ground. Corporeal hereditaments extend to buildings and other fixtures on the land, trees, crops and plants growing in the soil of the land, subjacent minerals and even some portion of the superjacent air space: K Gray and SF Gray, Elements of Land law, 4th ed, Oxford University Press, 2005, p 13 [1.24]- [1.25]. An incorporeal hereditament "is a right issuing out of a thing corporate (whether real or personal) or concerning, or annexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels, or the like; but something collateral thereto, as a rent issuing out of those lands or houses": W Blackstone, Commentaries on the Laws of England, Clarendon Press, Oxford, 1765 (reprinted Legal Classics Library, 1983), Vol 2, p 20, cited and applied by by Cotton LJ in In re Christmas. Martin v Lacon (1886) 33 ChD 332 at 338-339. Examples of incorporeal hereditaments are easements and profits à prendre."
I am thus satisfied that the encroachment of the "respondent's" bamboo onto the applicant's property inhibits the applicant's reasonable use of her land. This is a restraint of corporeal hereditament, which is considered as damage under the Act. Consequently, s 10(2)(a) of the Act is engaged.

Fence damage

Ms Doughty applied to have the timber paling common boundary fence replaced through the Court's powers to apply provisions of the Dividing Fences Act 1991 (The Dividing Fences Act). The Land and Environment Court has jurisdiction to hear and determine matters arising under The Dividing Fences Act in proceedings to which this section applies if the application is made under s 7 of the Trees Act, and if the proceedings have been commenced but not determined, and the tree that is the subject of those proceedings has caused, is causing, or is likely in the near future to cause damage to a dividing fence. 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.
I am not satisfied that the respondent's trees or bamboo that spread into the applicant's land had caused damage to the common boundary fence. Having been removed, the trees were not likely to cause near future damage. Therefore, the Court has no powers to make orders under The Dividing Fences Act.

Lawn damage

In her application, Ms Doughty said, "As part of our garden design, we intended sun loving plants and had a lawn…" The lawn was installed in 2011 or 2012 with low light tolerant turf and was said to have survived until about 2017. The applicant claimed the lawn's death was caused by the respondent's trees and sought compensation for damage of $2300.00 plus GST, based on a quote for installation of a new lawn.
I am not satisfied that the respondent's trees caused damage to the applicant's lawn that is not limited under Pt 2 of the Act. The residual trees in the respondent's rear yard are individual amenity trees, for which Pt 2 of the Act provides no jurisdiction to remedy obstruction of sunlight or views. The applicant's property is enclosed, not only by vegetation in the rear of the respondent's, and the respondent's side neighbours' properties, but by large, dense deciduous and evergreen trees in rear yards of north side properties. The land parcels are relatively small, and many owners have grown trees for privacy and amenity. This has resulted in a cumulative obstruction of community sunlight, for which the respondent is not independently responsible.
Even if I had found the lawn's demise was caused by the respondent's trees, the Court has held that s 14(1)(d) of the Limitation Act 1969 applies to compensation claims under the Act. The consequence is that there is a general six-year time limit, as from the date of filing an application under the Act, for compensation claims for past damage to an applicant's property. This is discussed in Moroney v John [2008] NSWLEC 32 at [32] and [33].
Ms Doughty said the lawn was installed in 2011 or 2012 and it survived to (about) 2017. Though Ms Jamieson generously offered to compensate Ms Doughty for the cost of the lawn, there is no legal requirement for Ms Jamieson to do so as the Act does not provide for compensation for damage to a lawn that occurred more than six years ago.
Other issues raised by Ms Doughty were rats and mosquitoes, unpleasant sounds from trees hitting the fence, and the development of mould in her yard. For claims that trees attract or harbour pests, the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.
This is explained in Robson, at [189], where his Honour says: "[189] Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]."
At [20] of Barker v Kyriakides [2007] NSWLEC 292 ("Barker"), a Tree Dispute Principle was established to account for damage claims based on leaves and other debris falling or blowing from trees. This Tree Dispute Principle says: "[20] 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."
The maintenance expectation arising from Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], to include cleaning of mould and slime. It is also likely that three consecutive La Nina cycles, resulting in markedly above average rainfall from 2020-2022 inclusive, contributed to the growth of mould on the applicant's land, and that this should abate with drier conditions. The applicant's claims regarding mould are thus refused. The issue of unpleasant sounds from trees hitting the fence has also been resolved by the respondent's yard clearance.

Discretionary matters - s 12

As s 10(2)(a) was engaged by the bamboo encroachment, in contemplating orders, the Court is required to consider relevant factors in s 12 of the Act:
The stems of the bamboo are located in the applicant's garden (s 12(a)).
Interference with the bamboo does not require separate approval under other Acts (s 12(b) and s 12(b1)).
Mr Albert values privacy in his rear yard, which the trees had formerly provided. (s 12(b3)).

Conclusions

The application under Pt 2A of the Act was refused as all vegetation had been removed from the rear of the respondent's yard prior to the hearing and I was satisfied it would not recur. The residual trees did not belong to hedges; they were individual amenity trees. Consequently, s 14E(2)(a) of the Act was not satisfied. Had the hedges remained and orders were contemplated to mitigate severe obstruction of sunlight to a window, any pruning ordered would not have been as low as 2 m. Similarly, orders would not have restricted future plantings to a height as low as 2 m as this height is insufficient to allow due consideration of Mr Albert's privacy.
In the application under Pt 2 of the Act, the respondent's bamboo growing on the applicant's land caused damage by restraint of corporeal hereditaments. Consequently, s 10(2)(a) of the Act was engaged, and orders shall be made for removal of the bamboo. Though diluted glyphosate herbicide, painted on freshly cut stem bases, is very effective in killing bamboo, to satisfy the applicant's aversion to chemicals, the orders can be adapted to avoid herbicide use. In either case, the orders shall include two maintenance inspections during 2024, in addition to the initial removal. Without herbicide application, the probability of some residual bamboo recurring is much higher.
As the respondent's trees had not damaged the common boundary fence to date, and were not likely to cause damage in the near future, the Court has no powers under the Dividing Fences Act, or the Act, to make orders for fence repair or replacement.
Now the hedges have been removed, Ms Doughty's open aspect and views of the sky have been restored. Winter sunlight will remain obstructed by trees to the north, but this constraint is an inevitable consequence of the enclosed location of the applicant's battle-axe block.

Orders

The Court orders are: 1. Within 45 days of the date of these orders, the respondent, at her expense, shall remove all bamboo growing within the applicant's garden and in the applicant's planter boxes near the common boundary, including all rhizomes, and remove all debris. 2. During April 2024 and November 2024, the respondent, at her expense, shall locate and remove all bamboo growing within the applicant's garden and in the applicant's planter boxes near the common boundary, including all rhizomes, and remove all debris. 3. The bamboo removal shall be completed by professional gardeners with appropriate insurance, and shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The applicant shall provide all reasonable access for contractors to undertake quotes, and to undertake the bamboo removal, upon receipt of at least 72 hours' notice by email from the respondent. 5. 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: 22 September 2023

At a glance

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Judgment (15 paragraphs)

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Cases Cited (11)