COMMISSIONER: Xuekui Chen, the respondent, owns a large property in Cremorne Point which is located on a slope that runs down to Shell Cove. Ms Chen's property, which she purchased in February 2022 and leases to tenants, is bordered on both sides and at the rear by dense bamboo, about 6 m tall.
The applicant, Russell Gill, owns an adjacent neighbouring property and the parties share a rear boundary which extends from north, north-west to south, south-east. The properties are accessed from different streets and the applicant's land is at a higher level than the respondent's property, the rear of which had been excavated long ago to provide level ground for the dwelling.
The applicant purchased his property in 2015, completed dwelling renovations 6 years ago, and rear yard landscaping 5 years ago. Mr Gill's property includes an inground swimming pool that was installed across the back yard around 2006, beyond which at a lower level is a triangle shaped garden between the pool and the rear boundary. The triangle shaped garden is about 3.5 m wide at the northern end and it narrows almost to a tip at the far southern end.
In late 2022, the applicant observed a drop in the pool water level, and upon investigating at the rear of the pool, he exposed a ruptured 50 - 75 mm PVC pipe, from which water surged. Aaron Torino, a plumber who repaired the pipe, reported bamboo roots in the pipe, which he considered had caused the pipe damage. Mr Gill said bamboo stems, which he claimed had encroached from the respondent's property, had grown rapidly at the rear of his pool, and had also damaged a wooden staircase. Landscape gardeners removed all accessible bamboo stems and roots from the applicant's rear garden and this required removal of almost all plants installed in the landscaping works. Even with this extent of bamboo removal, Mr Gill was unable to prevent bamboo regrowth.
With consideration for this reality, the plumber advised Mr Gill that future pipe damage was likely if the bamboo remained, and he declined to complete the plumbing works until the issue was rectified. The plumber recommended sealing the entire area behind the pool with concrete, but Mr Gill remained keen to pursue landscaping in the area for aesthetic and privacy reasons.
Mr Gill contacted the respondent through her property agent to seek bamboo removal from her land near the common boundary. Mr Gill said although Ms Chen claimed to be unaware of the extent of bamboo at the rear of her property, she acknowledged his issues, but indicated that removing the bamboo would be difficult.
Consequently, Mr Gill 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. The applicant did not claim compensation for plumbing costs, the stair replacement, nor for the plants which were destroyed in removing the bamboo, the combined cost of which Mr Gill estimated as $18,000 - $20,000.
[2]
The onsite hearing
The hearing was attended by Mr and Mrs Gill, and one of their fathers and an adjacent neighbour who attended as observers. Ms Chen did not appear but was represented by her solicitor, Mr Mathew Jaukovic. The hearing commenced with an inspection in the respondent's yard.
Bamboo grew as a dense screen along the entire length of the excavated steeply sloping bank bordering the rear of the respondent's property and continued uninterrupted up both side boundaries. The bamboo was Phyllostachys sp, a common rhizomatous variety.
The Court next assembled in the rear yard of Mr Gill's property, where I observed piles of excavated bamboo rhizomes and live stems emerging in various locations in the bottom garden, prior to oral submissions.
[3]
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.
At s 4 of the Trees (Disputes Between Neighbours) Regulation 2007, bamboo is prescribed as a tree for the purposes of the Act.
Mr Gill provided evidence that satisfied s 8 of the Trees Act, requiring notice of the application for orders to be given to owners of affected land, to North Sydney Council (Council), and the Heritage Council of NSW as Ms Chen's property is listed as a local heritage item.
Section 9(1) of the Trees 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 satisfied.
Mr Gill contacted Ms Chen through her property agent and sought removal of the respondent's bamboo near his property. He provided evidence of ongoing communication and negotiations. This requirement is not demanding, and the applicant's evidence is sufficient to engage s 10(1)(a) of the Act.
[4]
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.
[5]
Pool pipe damage
The PVC pool pipes had been located below the soil level behind the applicant's pool but the replacement pipes were attached high on the pool's back wall. Whilst excavating to expose and repair the pipes, the plumber reported finding dense bamboo roots within the pipes and throughout the soil. Bamboo roots are distinctive and relatively easy to identify, and this was a reasonable conclusion for the plumber to have drawn. Most experienced plumbers would be familiar with the running bamboo and its invasive nature.
In a message of 11 May 2023, Mr Torino noted: "…the bamboo roots had extensively infiltrated the pool pipes, resulting in about 60% of the inground pipes being burst", and, "The network of bamboo and roots that caused the damage originated from the neighbouring property, encroaching onto your property and affecting the pool area, piping and stairs".
Mr Jaukovic disputed the plumber's claim that bamboo roots caused the pipe damage and claimed that the plumber's informal statement about the damage was insufficient evidence to prove that bamboo, and particularly the respondent's bamboo, caused the damage. Considering he was not claiming compensation for damage, Mr Gill was disappointed and frustrated by the respondent's unwillingness to concede responsibility for the pipe damage and encouraged phoning the plumber to gain an oral submission. Mr Jaukovic opposed this on procedural grounds and also noted that pipe deterioration was likely due to the age of the pipes, a consideration under s 12(h)(i) of the Act. The pipes were about 17 years old.
I am satisfied that roots from the respondent's bamboo were a cause of the applicant's pipe damage. All of the roots I observed were from bamboo and there was no proximal source of Phyllostachys sp, other than the bamboo on the respondent's land. It is likely that bamboo roots initially entered pipes through tiny gaps in the adhesive in pipe junctions, so inadequate pipe installation is a second probable cause of damage. The trees, however, need only be a source of damage to satisfy the jurisdiction, so s 10(2)(a) of the Act is engaged.
[6]
Encroaching bamboo
Mr Gill's main aim was preventing bamboo regrowth in his back garden, and he described this as "future proofing". Rhizomes are roots that produce erect shoots along their entire length as they spread through the soil. As stems grow, the bamboo rhizomes spread outwards from all edges where environmental conditions allow. No surprise it is also called "running bamboo".
The 'NSW Weedwise' website says: Phyllostachys sp "easily escapes cultivation and spreads to form an impenetrable network of roots and heavy leaf litter". Its use is discouraged. Professional horticulturists and landscape gardeners are normally aware of the invasive potential associated with rhizomatous bamboo, and many local councils discourage its use. Unlike clumping bamboo, rhizomatous bamboo is rarely available in nurseries.
Though the applicant's land was currently fairly clear of bamboo, considering the piles of excavated bamboo rhizomes, the photographs in the application, some emerging bamboo stems, and my familiarity with the nature of rhizomatous bamboo, I am satisfied that bamboo rhizomes encroached below ground across the boundary from the respondent's land, and stems emerged and grew in the applicant's garden. I am also satisfied that without intervention, the bamboo is likely to recur in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the 'near future' is deemed to be a period of about 12 months from the date of the determination.
The bamboo has prevented Mr Gill from using his land, which is a hinderance in corporeal hereditaments. This is examined in Robson v Leischke 72 NSWLR 98; [2008] NSWLEC 152, at [164]-[165], where Preston CJ says:
"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."
A finding of hinderance in corporeal hereditaments was made in Bhuta v Cefai [2023] NSWLEC 1330 (Bhuta), when raised Fig roots restricted use of the applicants' yard [33] of Bhuta says:
"33 I do, however, accept the applicants' claim, in 'Current damage' in Exhibit C, that the exposed roots represent a hinderance in corporal hereditaments as the full use of the applicants' lawn area is restricted by the exposed roots of T 6. The applicants' claim was based on Dias v Vaswani [2011] NSWLEC 1274, where, at [17], Galwey AC said; "As outlined in Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280 at [165], lawn can be defined as a corporeal hereditament and thus is property on the applicant's land." Consequently, s 10(1)(a) of the Trees Act was engaged."
Here, the recurring bamboo has prevented Mr Gill from using his back garden, and this is ongoing. This is a hinderance in corporeal hereditaments which is damage for the purposes of the Act. Consequently, s 10(2) of the Act is again engaged.
[7]
Discretionary considerations - s 12
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 Trees Act, to balance the trees' attributes and benefits against imperatives informing intervention.
1. The bamboo is located in the respondent's property 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 (subss 12(b) and (b1)).
3. The bamboo contributes to the respondent's privacy, but this is at a cost or potential cost to neighbouring properties. The subject bamboo is near the south-east corner of the respondent's land and its dense growth has largely blocked access around the back of the dwelling. For most of the year it would be heavily shaded and likely rarely accessed As there are few dwelling windows in this area, the impact of bamboo removal on the respondent's privacy loss would be moderate and tolerable. A window at the rear of the respondent's dwelling is exposed by the applicant's absent landscaping (s 12(b3)).
4. The bamboo does not have any historical, cultural, social, or scientific value, this is regardless of the respondent's property being listed as a local heritage item. Stamped plans at page 20 of the respondent's submission indicate that the bamboo has been present on the respondent's land since at least 2006 and the applicant's neighbour said it was present in 2004 (s 12(c)).
5. Being neither a flowering tree, nor endemic, the bamboo is likely to make a minor contribution to biodiversity (s 12(d)).
6. The bamboo provides a contribution to the scenic value of the respondents' land but is not sufficiently prominent to contribute to public amenity (s 12(e) and (f)).
7. The bamboo would provide benefit with absorption of stormwater, in stabilising soil, and preventing landslip and erosion (s 12(g)).
8. As well as the advanced age of the pool pipe, at s 12(h)(i) of the Act, the respondent cited Black v Johnson (No 2) [2007] NSWLEC 513 (Black), which contains a tree dispute principle which may be applied when "the tree was there first". In summary, this tree dispute principle says, the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (s 12(h)(i)).
[8]
Conclusion
Rules of Evidence do not apply under the Act. As many parties are unrepresented, the procedures are often more informal than some jurisdictions. Though the respondent considered the plumber's evidence insufficient, with the arboricultural expertise that I bring to the Court, I am satisfied by the applicant's submissions and visual evidence on site that the respondent's bamboo probably damaged the applicant's pool pipes, and this engaged s 10(2) of the Act. As Mr Gill did not claim that new pool pipes would be damaged in the near future, I found little relevance in Mr Jaukovic's submission of Carter v MKTK Pty Ltd [2021] NSWLEC 1787, at [12] - [13]. Section 10(2) of the Act was also engaged by the respondent's invasive bamboo causing a hinderance in corporeal hereditaments.
With respect to discretionary considerations at s 12 of the Act, I accept the importance of the bamboos' role stabilising the steep bank on which it is growing, and its importance in providing privacy for the respondent.
I do not, however, accept that the cost of carrying out orders should be apportioned between the parties, because the bamboo "was there first", prior to the pool. Regardless of the tree dispute principle in Black, the bamboo was a poor plant selection and was always likely to escape into neighbouring properties. This fact is sufficiently ubiquitous amongst horticulturists that it seems disingenuous of the respondent, or at least her horticultural advisers, to appear to struggle to find reasonable options for managing the bamboo. Further, recent herbicide impact on bamboo along the southern boundary in the respondent's property suggested that someone knew about the bamboo's capacity to spread, and managed it, at least within the respondent's land. For all these reasons, I am not satisfied that the applicant should be responsible for inconsiderate choices made by a former owner of the respondent's property.
Orders will be made for cutting and poisoning of all bamboo in the respondent's property in proximity to the common boundary including a buffer zone of 2m behind the applicant's north side neighbour, whose property also borders the respondent. Information on herbicide rates and application may be found on the NSW Weedwise website. The dead stems and roots left in situ will continue to stabilise soil on the respondent's steep bank into the future, probably for many years. Orders shall include ongoing inspections and maintenance to ensure future absence of bamboo, and planting of a suitable tree in front of the respondent's window behind the pool.
[9]
Orders
The orders of the Court are:
1. Within 45 days of the date of these orders, the respondent, at their expense, shall employ contractors with appropriate insurance, to cut, poison, and remove all bamboo stems growing on the sloping bank adjacent to the common boundary, and all bamboo growing on the bank behind the applicant's north side neighbours' property, for the first two metres north of the common boundary between the applicant and their north side neighbour.
2. The respondent, at their expense, shall employ contractors with appropriate insurance to inspect the areas from which bamboo was removed in accordance with Order (1) and cut, poison, and remove any and all bamboo that regrows in this area to prevent any bamboo encroaching onto the applicant's land. These inspection and maintenance works shall occur during April and November of 2024, and during April and November of each subsequent year.
3. If bamboo emerges on the applicant's land, the applicant may alert the respondent by email. Within 30 days of receiving such an alert from the applicant, the respondent, at their expense, shall have the said bamboo cut, poisoned, and removed by suitable contractors with all appropriate insurances.
4. Within 45 days of completion of works in Order (1), the applicant, at their expense, shall plant one appropriate tree, 45 litres or larger in volume, in the garden behind the swimming pool to provide future privacy through the respondent's rear window.
5. All bamboo removal shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
6. Where access to the applicant's property is required to undertake the works, the applicant shall grant such access to the respondent or to the respondents' contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice of the date and approximate start time of the works.
7. The tree works shall be undertaken during reasonable daytime working hours.
[10]
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: 26 September 2023