Falamaki v Ling

Land and Environment Court (NSW)|2024-03-26

lamaki (Self-represented) (First Applicant) P Derrin (Self-represented) (Second Applicant) A Ling (Self-represented) (Respondents) File Number(s): 2024/8769 Publication restriction: Nil

Background

COMMISSIONER: The applicants, Sara Falamaki and Philip Derrin, own and occupy a property in Beecroft, adjoining the property owned and occupied by the respondents, Albert Ling and Ki Hyun Lee. The parties share a common rear boundary.
For many years, the respondents' back yard has been covered by Phyllostachys sp (Bamboo) and various weedy vines, a 'jungle' which the respondents valued aesthetically and for the dense privacy it provided.
The applicants claimed that the respondents' bamboo had spread onto their land and was causing various instances of property damage, and a risk of injury to persons. They noted Madeira vine engulfing and inhibiting growth of their boundary plants and that the bamboo and vines had harboured foxes and other vermin.
From late 2022, Ms Falamaki removed bamboo culms (stems) and vines from the common boundary and the respondents' back yard, but Mr Ling later found residual bamboo stems were an injury risk and requested Ms Falamaki cease accessing his land.
After the respondents allegedly refused further discussions, Ms Falamaki and Mr Derrin submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), proposing the Court make orders for the removal of the bamboo and vines and remediation of damage.

The onsite hearing

The hearing was attended by the applicants and Mr Ling, accompanied by Dr Trevor Hawkeswood, from whom the respondents had procured an arborist report (Hawkeswood report). As is customary, the hearing commenced with an inspection of the trees, the respondents' land, and the surrounding environment.
The shared boundary was about 20 m long. The land sloped down from the northwestern side towards a waterway to the southeast. An easement in favour of Hornsby Shire Council (Council) near the common boundary provided for surface runoff from higher land to the north. Ms Falamaki had cut the bamboo culms at about waist height. Residual cut stems and emerging shoots covered about half the yard closest to the common boundary while dense uncut bamboo remained beside a retaining wall at the rear of the respondents' dwelling.
In the applicants' rear yard, I was taken to masonry stairs and a path below a pool and shown bamboo rhizomes (runners) between sandstone paving and rhizomes allegedly excavated from under the paving stones. New shoots and tufty bamboo regrowth emerged from path and stair gaps. Bamboo shoots had also emerged under the applicants' timber pool decking and photographs in the Tree Dispute Claim Details (Exhibit B) displayed culms growing between decking boards. I also observed excavated bamboo rhizomes and stems.
Dr Hawkeswood disputed the applicants' damage, and alternatively claimed bamboo rhizomes and emergent stems were between stone path pavers rather than underneath paving stones and that emergent stems between decking boards and gaps in the masonry stairs had not caused property damage.
The applicants' (summarised) proposed orders are: 1. Within 30 days, the respondents shall have a suitably qualified arborist remove all bamboo from their property and from the applicants' property, and repair any damage to the applicants' property caused either directly by the bamboo or by the process of removing the bamboo. 2. The removal of the bamboo is to be repeated every six months for as long as any bamboo remains present on either property. 3. Within 30 days, the respondents shall have a suitably qualified horticulturist remove all Madeira vine from his property and the boundary fence.
The respondents resisted bamboo removal, primarily due to its impact on privacy. They proposed an alternative strategy formulated by Dr Hawkeswood comprising installation of a 600 mm deep root barrier on the respondents' land, 4 m from the common boundary, removal of bamboo and weeds from the "buffer zone" between the bamboo and the boundary, and future maintenance of the "buffer zone" free of bamboo, vines and weeds, which "will be continuously removed". According to Dr Hawkeswood's proposal, the respondents are "… prepared to remove any bamboo from (the applicants' property) as well as any bamboo which arises in the new (sic) few years. This buffer and methodology is (sic) more than adequate to control the bamboo."

Jurisdictional requirements

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 the Act applies that is situated on adjoining land.
The parties are the owners of the adjoining properties. 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. Therefore, s 7 of the Act is satisfied.
The applicants provided evidence of satisfaction of s 8 of the Act, requiring notice of the application for orders to be given to owners of affected land, and to Council. The respondents attended the Registrar's directions hearing on 20 February 2024 and Council provided a stamped receipt of service on 23 February 2024.
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."
The Court is obliged to consider a number of matters pursuant to s 10 of the Act. Section 10(1)(a) requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated.
Ms Falamaki informed Mr Ling about bamboo encroachment after she initially noticed it entering her property in late 2022. Ms Falamaki claimed Mr Ling suggested she "enter his property over the boundary fence to control the bamboo myself" but, in a letter of 6 August 2024, Mr Ling requested Ms Falamaki cease to enter his land. Mr Ling submitted he had never authorised Ms Falamaki's access, or the extent of bamboo removal, and he considered the residual bamboo stems presented a risk of injury due to their sloping cuts.
Ms Falamaki contended that Mr Ling subsequently refused to discuss the bamboo and referred her to Council or the Court, notwithstanding that the applicants declined the respondents' attempt to mediate through a Community Justice Centre in February 2024. Regardless that Ms Falamaki's bamboo clearing did not please the respondents, Ms Falamaki clearly communicated her request for the respondents to remove their bamboo and the Act does not prescribe how applicants make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. Therefore, the applicants' evidence is sufficient to engage s 10(1)(a) of the Act.
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.

Damage caused by the bamboo

I am satisfied that bamboo rhizomes, or underground stems, had spread through the soil of the respondents' land into the applicants' soil and along the soil surface. Bamboo rhizomes are distinctive and relatively easy to identify. On site and in the applicants' images in Exhibit B, I saw bamboo rhizomes extending under the stone path and shoots emerging from the rhizomes under the applicants' pool deck a few metres from the common boundary, beyond the stone path.
I accepted Ms Falamaki's contention that stone pavers had been heaved, lifted, and destabilised by the bamboo, and rhizomes were also likely to be encroaching relatively deep under the stone path due to the distinctly lower level of the respondents' land near the boundary. All roots and stems I observed causing damage were from bamboo and there was no proximal source of bamboo, other than on the respondents' land. I am thus satisfied that rhizomes and stems from the respondents' bamboo were a cause of the damage.
Though damage to date due to bamboo may be considered minor, 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), but it can be relevant in determining what orders, if any, should be made. Consequentially, s 10(2)(a) of the Act is engaged.
Tufts of bamboo growing in gaps in the masonry stairs and emergent stems growing between pool decking boards did not yet appear to have caused damage, but given the bamboo's characteristics and rapid growth rate, and the favourable environmental conditions of this locality, I am satisfied that in the absence of intervention with the bamboo, damage to stairs, decking boards, and further path damage is likely in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, the 'near future', as a rule of thumb, is deemed to be a period of 12 months from the date of the determination. Therefore, s 10(2)(a) of the Act is engaged.
In considering bamboo incursion in Dias v Vaswani [2011] NSWLEC 1274 ("Dias"), Galwey AC cited Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [165]-[166], where his Honour discussed the concept of 'corporeal' and 'incorporeal' hereditaments or components of land. While incorporeal components of land are certain intangible rights like rent, "[c]orporeal 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."
His Honour determined that the reference in s 7 of the Act to "property on the land" may be a reference to 'corporeal hereditaments'. This interpretation has been adopted consistently in determinations of applications under s 7 of the Act. In Dias, at [18], the Acting Commissioner determined that the bamboo had damaged a lawn in that the bamboo prevented the lawn being used for the purpose for which it is intended.
In this case, I am satisfied on the evidence that the respondents' bamboo has not yet prevented reasonable use of the applicants' land. If, however, the bamboo on their land is left unchecked, I am satisfied that it will prevent use of parts of the masonry stairs, stone path, and pool decking for the purpose for which they are intended. Consequent of likely near future restraint of corporal hereditaments of the land, s 10(2)(a) is again satisfied.

Risk of injury

The applicants contended that emergent stems in their stairs and stone path and destabilisation of path pavers presented a genuine risk of injury to persons. Exhibit B also noted Mr Ling's claim of injury risk from angled cuts on residual bamboo stems.
I am satisfied, however, that such risks are low, and do not engage s 10(2)(b) of the Act. Individually, the hazards are minor, and the paths appeared to be used infrequently. All people likely to walk in these areas would be aware of the hazards or may be readily informed of the minor risk so as to consider appropriate precautions.
Regardless that s 10(2)(b) was not engaged, the trees need only satisfy one of the four conditions of 10(2) to satisfy the jurisdictional requirements. Consequently, s 10(2) of the Act is engaged.

Discretionary considerations - s 12 of the Act

When s 10(2) of the Act is satisfied, before making orders, the Court is required to consider the discretionary matters in s 12 of the Act, to balance the trees' attributes and benefits against the imperatives informing intervention. 1. The bamboo is located throughout the respondents' rear yard and is established in close proximity to the common boundary (s 12(a)). 2. Bamboo is exempt from Council's Tree Management controls under the Environmental Planning and Assessment Act 1979, or consents or authorisations under other Acts (ss 12(b) and 12(b1)). 3. The bamboo contributes to both parties' privacy and is particularly valued by the respondents, but such privacy is gained at the applicants' cost (s 12(b3)). 4. The bamboo does not have any historical, cultural, social, or scientific value (s 12(c)). 5. Bamboo is exotic and contributes little to biodiversity. The bamboo's dense, matted roots, hydrophobia arising from its foliage debris, and competition for nutrients and water contribute negatively to the soil ecosystem of surrounding Blue Gums. In Exhibit B, the applicants noted that both properties are within the habitat of Blue Gum High Forest in the Sydney Basin Bioregion, a Critically Endangered Ecological Community listed in Sch 2 of the Biodiversity Conservation Act 2016 (s 12(d)). 6. The applicants claimed the bamboo harboured vermin, but the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals. In Robson; at [189], his Honour says: 7. "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]"(s 12(d)). 8. The bamboo provides a desired contribution to the scenic value of the respondents' land and makes a minor contribution to public amenity due to an adjacent public walkway (ss 12(e) and 12(f)). 9. The bamboo would probably contribute to stabilising soil and mitigating erosion (s 12(g)).

Findings

This species of bamboo is a running variety, rather than a clumping form more commonly used in modern applications. Running bamboos are monopodial, with long rhizomes that rapidly spread outwards where environmental conditions allow and produce erect shoots at close intervals as they extend through the soil. The network of bamboo that is the cause of the applicants' path, stair and pool deck damage initially encroached from the respondents' neighbouring property. Clumping varieties are sympodial and more confined. They have much shorter rhizomes that curve upwards soon after emergence, and thus spread far less.
The Hawkeswood report, at Appendix 1, contained a Fact Sheet from Council on identification and removal of Phyllostachys sp, which noted; "[i]nfestations create an impenetrable network of roots, heavy leaf litter and dense shade that displaces native flora and degrades the quality of the bushland for local fauna species" and "[i]t easily outcompetes garden plants, ruins the soil, and sharp regrowth can cause a hazard for people and pets". The Council Fact Sheet considered the difficulty and cost of long-term management of retained Phyllostachys sp. The advice "highly recommended that landholders agree and work together to eradicate the plant from their area" and noted removal required patience and persistence and that "a one-off blitz ultimately achieves little".
The 'NSW Weedwise' website says: Phyllostachys sp "easily escapes cultivation and spreads to form an impenetrable network of roots and heavy leaf litter" and its use is generally discouraged by local councils. Unlike clumping bamboo, rhizomatous bamboo is rarely available for sale in nurseries.
While focused on remediating property damage, and control and prevention of ongoing encroachment by bamboo, the applicants also contended the respondents' bamboo and weeds negatively impacted surrounding trees. Images in Exhibit B substantiated Ms Falamaki's submission that the bamboo provided a frame for weedy vines to access essential sunlight and ascend the Blue Gum trees. The applicants' concluding submission was that the respondents' solution will not work, that root barriers would cause Eucalyptus root damage, the scheme is not cost effective, and alternative bamboos are available that "don't spread".
The Hawkeswood report noted that "[d]espite the comments of Sara Falamaki in (Exhibit B), the bamboo has not affected the growth or health of the Eucalyptus saligna trees, although there may have been limited competition for nutrients and water". In the report's Conclusion and Recommendations, Dr Hawkeswood contended that the respondents' bamboo removal proposal was a better response than the Council Fact Sheet methodology and that, "[t]he root barrier will not affect or be affected by topography or flooding."
While the respondents submitted a reasonable alternative proposal, I am satisfied, for the following reasons, that the applicants' proposed orders will result in a superior outcome in the context of this site: 1. When asked to discuss practicalities of root barrier installation, Dr Hawkeswood didn't "think (the root barrier) will be a big problem with the roots of the Eucalypts" and suggested that flexibility with installation of barriers such as reducing barrier depth to a few hundred millimetres, would prevent root damage. An alternative Dr Hawkeswood proposed, should excessive roots be encountered installing the barrier, was discontinuous root barriers around clumps of bamboo, away from Blue Gum roots. 2. The slope of the respondents' land is not uniform. Rather, the angle of the slope is greatest on the northwestern side and reduces across the back yard closer to the adjacent watercourse. This reducing slope would likely accumulate soil deposited from higher land and probably has areas of well aerated soil of considerable depth, ideal for root growth. As seven large, mature Blue Gums were growing in the respondents' back yard and at least another five growing in close proximity, the site would necessarily contain a dense network of lateral Blue Gums roots. A vertical plastic root barrier would thus need to be cut to accommodate the altering slope and each Blue Gum root, but to be effective, especially with rhizomatous bamboo, a root barrier must be continuous with all gaps sealed to prevent root incursion. Attempts to effectively seal a barrier cut and curved to accommodate the altering slope and multiple Blue Gum roots are not likely to be successful while also causing unacceptable Blue Gum root damage. Installation of a continuous concrete barrier may overcome the discontinuity constraint, but Blue Gum root damage caused by excavation for the barrier would be significant. Such root barrier practicalities are considered in Prowse & anor v Porter & anor [2016] NSWLEC 1135 (Prowse); at [11]-[12]: "11 The applicants engaged Ms Catriona Mackenzie, a Consulting Arborist, to attend the hearing and assist the Court. Ms Mackenzie had inspected the applicants' property on two occasions; on the second occasion she also inspected the bamboo from the respondents' property and used a 1.2m steel spike to determine the depth of soil to the underlying rock. The purpose of this investigation was to determine the practicality of installing a root barrier along the common boundary. 12 Table 1 of Ms Mackenzie's report dated 29 February 2016 records the location of six test sites and the depth to the underlying rock. The depths vary from 245mm to 1.2m including one site where rock was not encountered. Relevantly, she states in her report: "10. The recorded soil depths in these locations (Table 1) suggest a root barrier could be utilised to potentially control bamboo ingress into the site for part of the boundary only. The area where the bamboo is most prolific (i.e.) at the south end facing the street) appears to have underlying rock at a shallow depth, which would preclude effective control. 11. In saying this, root barriers are only effective if they are routinely maintained, including yearly root pruning to keep lateral growth (which can extend around the ends of a root barrier) in check. Control may also require irrigation on the bamboo side to minimise the need for roots to continue to grow towards a water source, such as that in a tended garden. 12. I am concerned that there will still be areas of rock within the upper soil profile, despite the apparent adequate soil depths in 5 of the 6 test locations. A root barrier is not likely to work where there are underlying rock floaters and benching. It would be difficult to ensure a good 'seal' between the toot barrier and the sandstone rock. As shown in Plate D2, page 6 of the Application (Form H), the bamboo hits a 'barrier' and can deflect in any direction possible to continue growth. This may be laterally, downwards, upwards or a combination of those (see attached copy of D2…) Conclusions 10. It is quite clear that, if left unchecked, the bamboo will continue to spread through the garden where it can access soil. It will become a dense 'forest' of canes and foliage that will eventually out-shade and out-compete more desirable plantings in the site. 11. Given the rapid growth (height and spread) observed between my first and second site visits (July 2015 and February 2016) on-going damage to structures and plantings is very likely to increase noticeably during the next spring/summer growing season (September - February 2016 [7]). 12. My observations during my brief inspection of No. 85 [respondents' property] indicate the bamboo is growing in areas where it is not desired with subsequent cutting and mowing undertaken in an attempt to control its above ground presence. 13. I still maintain complete removal of the bamboo and follow up control in preference to using a root barrier would be the most effective long-term (and economically sensible) method of addressing this issue." 1. Unlike Ms Mackenzie in Prowse, Dr Hawkeswood had not conducted any exploratory excavation to assess soil profile characteristics, horizon depth or root presence, and thus barrier viability. Rather, he suggested one could check for Blue Gum roots while clearing, excavating, and installing the barrier, with not much damage to the Eucalyptus trees. To the contrary, based on the arboricultural expertise that I bring to the Court, I am satisfied that barrier modifications required to accommodate the yard's curved slope and Blue Gum roots, would result in bamboo roots readily breaching the barrier, and unacceptable Blue Gum root damage. 2. I am also persuaded that the cumulative consequences of a dense mat of active bamboo roots covering much of the respondents' back yard for many years would significantly compromise the Blue Gum's soil ecosystem, rather than causing "limited competition for nutrients and water", as claimed by Dr Hawkeswood. 3. Though Dr Hawkeswood postulated that the respondents' main task was initial bamboo clearing, after which the "maintenance is not nearly as costly or difficult", this is unlikely as such ongoing maintenance is rarely easy nor sufficiently consistent to be successful long term. Though the respondents may intend to constantly monitor the "buffer zone" free of bamboo, vines and weeds, life presents distractions and as is apparent on site, the bamboo rapidly recurs. The bamboo, weeds, and terrain of the respondents' back yard make it relatively inaccessible and difficult to maintain. The respondents had previously not controlled or maintained the vegetation for about eight years; they had no need as it provided privacy and they were probably unaware of its invasive potential. Nonetheless, the bamboo encroached onto the applicants' land and the adjacent Council thoroughfare during that period. 4. Should the respondents' proposed orders be made for perpetual maintenance of the bamboo and a root barrier, orders made under Pt 2 of the Act run with the title of the land. Such maintenance orders would thus bind future owners and complicate and possibly compromise future property transfers. 5. Considering the relentless task of restraining the bamboo on the respondents' land, the likelihood of future incursions, the bamboo's negative environmental contributions and its role as a likely source of future conflict, I am satisfied that removal of all the bamboo will be the more effective of the two proposals, and likely the more economic over the long term. Further, it is unreasonable to simply 'kick the can down the road' and leave the bamboo infestation to spread downstream or be cleared by the properties' future residents.

Conclusion

Though the respondents considered the applicants' evidence of damage insufficient, I am satisfied by the applicants' submissions and visual evidence on site that the respondents' bamboo had damaged the applicants' stone path, was likely to cause various instances of near future damage and near future restraint of the use of the applicants' land, all of which engaged s 10(2) of the Act.
While Dr Hawkeswood acknowledged having read and agreeing to be bound by the Expert Witness Code of Conduct at Sch 7 of the Uniform Civil Procedure Rules 2005, he nonetheless transgressed by advocating for Mr Ling, both in his report and during the hearing.
The respondents' root barrier and "buffer zone" proposal was compromised by the impracticality of an effective barrier in the site context, which made bamboo exclusion from the buffer zone unlikely. Proposed shallow barriers or discontinuous barriers around bamboo clumps were merely thought bubbles; these ideas had no practical basis or likelihood of success. Though Dr Hawkeswood considered root damage impact on adjacent Blue Gums from barrier installation would likely be minor, I am satisfied that the cumulative impact of root damage would probably be significant. This factor is especially relevant in an area characterised by mature Blue Gum High Forest.
With respect to discretionary considerations at s 12 of the Act, I accept the importance of the bamboos' role in providing privacy for the respondents but there are readily available clumping varieties of bamboo that may be planted in front of the respondents' retaining wall to rapidly re-establish privacy but retain roots in a relatively confined area.
Therefore, orders will be made for cutting and poisoning all bamboo on both parties' properties, and ongoing maintenance to ensure the bamboo is eradicated. Information on herbicide rates and application may be found on the NSW Weedwise website and in the Council Fact Sheet. The respondents' dead bamboo roots should be left in situ to deteriorate. They will likely continue to stabilise soil on the respondents' sloping land and relative to excavating rhizomes, reduce damage to copious fine Blue Gum roots with which bamboo roots are likely intermingled. While rhizome removal from under the applicants' stairs is impractical and not proportional to the damage currently apparent, rhizomes shall be removed wherever practicable. Orders shall also be made for repair of the applicants' stone path. No orders shall apply to the Madeira vine as I am not satisfied it has caused damage to the applicants' property or is likely to do so in the near future.

Orders

The orders of the Court are: 1. The respondents are to engage and pay for an AQF level 3 (Trade level) Arborist, Bush Regenerator, Landscape Contractor or Horticulturalist with all appropriate insurances (the contractor) to remove all bamboo from the respondents' property. For the purpose of this order, bamboo removal on the applicants' land includes cutting all stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website. 2. The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants' property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants' property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants' bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable. 3. The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders. 4. The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents' and the applicants' properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years. 5. Where access to the applicants' property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents' contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice. 6. All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

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: 02 July 2024

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

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.

I am satisfied that bamboo rhizomes, or underground stems, had spread through the soil of the respondents' land into the applicants' soil and along the soil surface. Bamboo rhizomes are distinctive and relatively easy to identify. On site and in the applicants' images in Exhibit B, I saw bamboo rhizomes extending under the stone path and shoots emerging from the rhizomes under the applicants' pool deck a few metres from the common boundary, beyond the stone path.
I accepted Ms Falamaki's contention that stone pavers had been heaved, lifted, and destabilised by the bamboo, and rhizomes were also likely to be encroaching relatively deep under the stone path due to the distinctly lower level of the respondents' land near the boundary. All roots and stems I observed causing damage were from bamboo and there was no proximal source of bamboo, other than on the respondents' land. I am thus satisfied that rhizomes and stems from the respondents' bamboo were a cause of the damage.
Though damage to date due to bamboo may be considered minor, 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), but it can be relevant in determining what orders, if any, should be made. Consequentially, s 10(2)(a) of the Act is engaged.
Tufts of bamboo growing in gaps in the masonry stairs and emergent stems growing between pool decking boards did not yet appear to have caused damage, but given the bamboo's characteristics and rapid growth rate, and the favourable environmental conditions of this locality, I am satisfied that in the absence of intervention with the bamboo, damage to stairs, decking boards, and further path damage is likely in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, the 'near future', as a rule of thumb, is deemed to be a period of 12 months from the date of the determination. Therefore, s 10(2)(a) of the Act is engaged.
In considering bamboo incursion in Dias v Vaswani [2011] NSWLEC 1274 ("Dias"), Galwey AC cited Preston CJ in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson); at [165]-[166], where his Honour discussed the concept of 'corporeal' and 'incorporeal' hereditaments or components of land. While incorporeal components of land are certain intangible rights like rent, "[c]orporeal 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."
His Honour determined that the reference in s 7 of the Act to "property on the land" may be a reference to 'corporeal hereditaments'. This interpretation has been adopted consistently in determinations of applications under s 7 of the Act. In Dias, at [18], the Acting Commissioner determined that the bamboo had damaged a lawn in that the bamboo prevented the lawn being used for the purpose for which it is intended.
In this case, I am satisfied on the evidence that the respondents' bamboo has not yet prevented reasonable use of the applicants' land. If, however, the bamboo on their land is left unchecked, I am satisfied that it will prevent use of parts of the masonry stairs, stone path, and pool decking for the purpose for which they are intended. Consequent of likely near future restraint of corporal hereditaments of the land, s 10(2)(a) is again satisfied.

The applicants contended that emergent stems in their stairs and stone path and destabilisation of path pavers presented a genuine risk of injury to persons. Exhibit B also noted Mr Ling's claim of injury risk from angled cuts on residual bamboo stems.
I am satisfied, however, that such risks are low, and do not engage s 10(2)(b) of the Act. Individually, the hazards are minor, and the paths appeared to be used infrequently. All people likely to walk in these areas would be aware of the hazards or may be readily informed of the minor risk so as to consider appropriate precautions.
Regardless that s 10(2)(b) was not engaged, the trees need only satisfy one of the four conditions of 10(2) to satisfy the jurisdictional requirements. Consequently, s 10(2) of the Act is engaged.

When s 10(2) of the Act is satisfied, before making orders, the Court is required to consider the discretionary matters in s 12 of the Act, to balance the trees' attributes and benefits against the imperatives informing intervention.

(1) The bamboo is located throughout the respondents' rear yard and is established in close proximity to the common boundary (s 12(a)).

(2) Bamboo is exempt from Council's Tree Management controls under the Environmental Planning and Assessment Act 1979, or consents or authorisations under other Acts (ss 12(b) and 12(b1)).

(3) The bamboo contributes to both parties' privacy and is particularly valued by the respondents, but such privacy is gained at the applicants' cost (s 12(b3)).

(4) The bamboo does not have any historical, cultural, social, or scientific value (s 12(c)).

(5) Bamboo is exotic and contributes little to biodiversity. The bamboo's dense, matted roots, hydrophobia arising from its foliage debris, and competition for nutrients and water contribute negatively to the soil ecosystem of surrounding Blue Gums. In Exhibit B, the applicants noted that both properties are within the habitat of Blue Gum High Forest in the Sydney Basin Bioregion, a Critically Endangered Ecological Community listed in Sch 2 of the Biodiversity Conservation Act 2016 (s 12(d)).

(6) The applicants claimed the bamboo harboured vermin, but the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals. In Robson; at [189], his Honour says:

(7) "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]"(s 12(d)).

(8) The bamboo provides a desired contribution to the scenic value of the respondents' land and makes a minor contribution to public amenity due to an adjacent public walkway (ss 12(e) and 12(f)).

(9) The bamboo would probably contribute to stabilising soil and mitigating erosion (s 12(g)).

This species of bamboo is a running variety, rather than a clumping form more commonly used in modern applications. Running bamboos are monopodial, with long rhizomes that rapidly spread outwards where environmental conditions allow and produce erect shoots at close intervals as they extend through the soil. The network of bamboo that is the cause of the applicants' path, stair and pool deck damage initially encroached from the respondents' neighbouring property. Clumping varieties are sympodial and more confined. They have much shorter rhizomes that curve upwards soon after emergence, and thus spread far less.
The Hawkeswood report, at Appendix 1, contained a Fact Sheet from Council on identification and removal of Phyllostachys sp, which noted; "[i]nfestations create an impenetrable network of roots, heavy leaf litter and dense shade that displaces native flora and degrades the quality of the bushland for local fauna species" and "[i]t easily outcompetes garden plants, ruins the soil, and sharp regrowth can cause a hazard for people and pets". The Council Fact Sheet considered the difficulty and cost of long-term management of retained Phyllostachys sp. The advice "highly recommended that landholders agree and work together to eradicate the plant from their area" and noted removal required patience and persistence and that "a one-off blitz ultimately achieves little".
The 'NSW Weedwise' website says: Phyllostachys sp "easily escapes cultivation and spreads to form an impenetrable network of roots and heavy leaf litter" and its use is generally discouraged by local councils. Unlike clumping bamboo, rhizomatous bamboo is rarely available for sale in nurseries.
While focused on remediating property damage, and control and prevention of ongoing encroachment by bamboo, the applicants also contended the respondents' bamboo and weeds negatively impacted surrounding trees. Images in Exhibit B substantiated Ms Falamaki's submission that the bamboo provided a frame for weedy vines to access essential sunlight and ascend the Blue Gum trees. The applicants' concluding submission was that the respondents' solution will not work, that root barriers would cause Eucalyptus root damage, the scheme is not cost effective, and alternative bamboos are available that "don't spread".
The Hawkeswood report noted that "[d]espite the comments of Sara Falamaki in (Exhibit B), the bamboo has not affected the growth or health of the Eucalyptus saligna trees, although there may have been limited competition for nutrients and water". In the report's Conclusion and Recommendations, Dr Hawkeswood contended that the respondents' bamboo removal proposal was a better response than the Council Fact Sheet methodology and that, "[t]he root barrier will not affect or be affected by topography or flooding."
While the respondents submitted a reasonable alternative proposal, I am satisfied, for the following reasons, that the applicants' proposed orders will result in a superior outcome in the context of this site:

(1) When asked to discuss practicalities of root barrier installation, Dr Hawkeswood didn't "think (the root barrier) will be a big problem with the roots of the Eucalypts" and suggested that flexibility with installation of barriers such as reducing barrier depth to a few hundred millimetres, would prevent root damage. An alternative Dr Hawkeswood proposed, should excessive roots be encountered installing the barrier, was discontinuous root barriers around clumps of bamboo, away from Blue Gum roots.

(2) The slope of the respondents' land is not uniform. Rather, the angle of the slope is greatest on the northwestern side and reduces across the back yard closer to the adjacent watercourse. This reducing slope would likely accumulate soil deposited from higher land and probably has areas of well aerated soil of considerable depth, ideal for root growth. As seven large, mature Blue Gums were growing in the respondents' back yard and at least another five growing in close proximity, the site would necessarily contain a dense network of lateral Blue Gums roots. A vertical plastic root barrier would thus need to be cut to accommodate the altering slope and each Blue Gum root, but to be effective, especially with rhizomatous bamboo, a root barrier must be continuous with all gaps sealed to prevent root incursion. Attempts to effectively seal a barrier cut and curved to accommodate the altering slope and multiple Blue Gum roots are not likely to be successful while also causing unacceptable Blue Gum root damage. Installation of a continuous concrete barrier may overcome the discontinuity constraint, but Blue Gum root damage caused by excavation for the barrier would be significant. Such root barrier practicalities are considered in Prowse & anor v Porter & anor [2016] NSWLEC 1135 (Prowse); at [11]-[12]:

"11 The applicants engaged Ms Catriona Mackenzie, a Consulting Arborist, to attend the hearing and assist the Court. Ms Mackenzie had inspected the applicants' property on two occasions; on the second occasion she also inspected the bamboo from the respondents' property and used a 1.2m steel spike to determine the depth of soil to the underlying rock. The purpose of this investigation was to determine the practicality of installing a root barrier along the common boundary.

12 Table 1 of Ms Mackenzie's report dated 29 February 2016 records the location of six test sites and the depth to the underlying rock. The depths vary from 245mm to 1.2m including one site where rock was not encountered. Relevantly, she states in her report:

"10. The recorded soil depths in these locations (Table 1) suggest a root barrier could be utilised to potentially control bamboo ingress into the site for part of the boundary only. The area where the bamboo is most prolific (i.e.) at the south end facing the street) appears to have underlying rock at a shallow depth, which would preclude effective control.

11. In saying this, root barriers are only effective if they are routinely maintained, including yearly root pruning to keep lateral growth (which can extend around the ends of a root barrier) in check. Control may also require irrigation on the bamboo side to minimise the need for roots to continue to grow towards a water source, such as that in a tended garden.

12. I am concerned that there will still be areas of rock within the upper soil profile, despite the apparent adequate soil depths in 5 of the 6 test locations. A root barrier is not likely to work where there are underlying rock floaters and benching. It would be difficult to ensure a good 'seal' between the toot barrier and the sandstone rock. As shown in Plate D2, page 6 of the Application (Form H), the bamboo hits a 'barrier' and can deflect in any direction possible to continue growth. This may be laterally, downwards, upwards or a combination of those (see attached copy of D2...)

10. It is quite clear that, if left unchecked, the bamboo will continue to spread through the garden where it can access soil. It will become a dense 'forest' of canes and foliage that will eventually out-shade and out-compete more desirable plantings in the site.

11. Given the rapid growth (height and spread) observed between my first and second site visits (July 2015 and February 2016) on-going damage to structures and plantings is very likely to increase noticeably during the next spring/summer growing season (September - February 2016 [7]).

12. My observations during my brief inspection of No. 85 [respondents' property] indicate the bamboo is growing in areas where it is not desired with subsequent cutting and mowing undertaken in an attempt to control its above ground presence.

13. I still maintain complete removal of the bamboo and follow up control in preference to using a root barrier would be the most effective long-term (and economically sensible) method of addressing this issue."

(3) Unlike Ms Mackenzie in Prowse, Dr Hawkeswood had not conducted any exploratory excavation to assess soil profile characteristics, horizon depth or root presence, and thus barrier viability. Rather, he suggested one could check for Blue Gum roots while clearing, excavating, and installing the barrier, with not much damage to the Eucalyptus trees. To the contrary, based on the arboricultural expertise that I bring to the Court, I am satisfied that barrier modifications required to accommodate the yard's curved slope and Blue Gum roots, would result in bamboo roots readily breaching the barrier, and unacceptable Blue Gum root damage.

(4) I am also persuaded that the cumulative consequences of a dense mat of active bamboo roots covering much of the respondents' back yard for many years would significantly compromise the Blue Gum's soil ecosystem, rather than causing "limited competition for nutrients and water", as claimed by Dr Hawkeswood.

(5) Though Dr Hawkeswood postulated that the respondents' main task was initial bamboo clearing, after which the "maintenance is not nearly as costly or difficult", this is unlikely as such ongoing maintenance is rarely easy nor sufficiently consistent to be successful long term. Though the respondents may intend to constantly monitor the "buffer zone" free of bamboo, vines and weeds, life presents distractions and as is apparent on site, the bamboo rapidly recurs. The bamboo, weeds, and terrain of the respondents' back yard make it relatively inaccessible and difficult to maintain. The respondents had previously not controlled or maintained the vegetation for about eight years; they had no need as it provided privacy and they were probably unaware of its invasive potential. Nonetheless, the bamboo encroached onto the applicants' land and the adjacent Council thoroughfare during that period.

(6) Should the respondents' proposed orders be made for perpetual maintenance of the bamboo and a root barrier, orders made under Pt 2 of the Act run with the title of the land. Such maintenance orders would thus bind future owners and complicate and possibly compromise future property transfers.

(7) Considering the relentless task of restraining the bamboo on the respondents' land, the likelihood of future incursions, the bamboo's negative environmental contributions and its role as a likely source of future conflict, I am satisfied that removal of all the bamboo will be the more effective of the two proposals, and likely the more economic over the long term. Further, it is unreasonable to simply 'kick the can down the road' and leave the bamboo infestation to spread downstream or be cleared by the properties' future residents.

Though the respondents considered the applicants' evidence of damage insufficient, I am satisfied by the applicants' submissions and visual evidence on site that the respondents' bamboo had damaged the applicants' stone path, was likely to cause various instances of near future damage and near future restraint of the use of the applicants' land, all of which engaged s 10(2) of the Act.
While Dr Hawkeswood acknowledged having read and agreeing to be bound by the Expert Witness Code of Conduct at Sch 7 of the Uniform Civil Procedure Rules 2005, he nonetheless transgressed by advocating for Mr Ling, both in his report and during the hearing.
The respondents' root barrier and "buffer zone" proposal was compromised by the impracticality of an effective barrier in the site context, which made bamboo exclusion from the buffer zone unlikely. Proposed shallow barriers or discontinuous barriers around bamboo clumps were merely thought bubbles; these ideas had no practical basis or likelihood of success. Though Dr Hawkeswood considered root damage impact on adjacent Blue Gums from barrier installation would likely be minor, I am satisfied that the cumulative impact of root damage would probably be significant. This factor is especially relevant in an area characterised by mature Blue Gum High Forest.
With respect to discretionary considerations at s 12 of the Act, I accept the importance of the bamboos' role in providing privacy for the respondents but there are readily available clumping varieties of bamboo that may be planted in front of the respondents' retaining wall to rapidly re-establish privacy but retain roots in a relatively confined area.
Therefore, orders will be made for cutting and poisoning all bamboo on both parties' properties, and ongoing maintenance to ensure the bamboo is eradicated. Information on herbicide rates and application may be found on the NSW Weedwise website and in the Council Fact Sheet. The respondents' dead bamboo roots should be left in situ to deteriorate. They will likely continue to stabilise soil on the respondents' sloping land and relative to excavating rhizomes, reduce damage to copious fine Blue Gum roots with which bamboo roots are likely intermingled. While rhizome removal from under the applicants' stairs is impractical and not proportional to the damage currently apparent, rhizomes shall be removed wherever practicable. Orders shall also be made for repair of the applicants' stone path. No orders shall apply to the Madeira vine as I am not satisfied it has caused damage to the applicants' property or is likely to do so in the near future.

(1) The respondents are to engage and pay for an AQF level 3 (Trade level) Arborist, Bush Regenerator, Landscape Contractor or Horticulturalist with all appropriate insurances (the contractor) to remove all bamboo from the respondents' property. For the purpose of this order, bamboo removal on the applicants' land includes cutting all stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website.

(2) The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants' property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants' property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants' bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable.

(3) The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders.

(4) The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents' and the applicants' properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years.

(5) Where access to the applicants' property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents' contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice.

(6) All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Conservation Act 2016

Planning and Assessment Act 1979

(Disputes Between Neighbours) Act 2006

(Disputes Between Neighbours) Regulation 2007

Uniform Civil Procedures Rules 2005

(Disputes between Neighbours) Act 2006

(Disputes Between Neighbours) Regulation 2014

Civil Procedure Rules 2005

At a glance

Court

Decision date

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Judgment (35 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (8)