Kilpatrick v Youlten

Part 2A - Obstruction of sunlight 7The bamboo is planted so as to form a hedge and is greater than 2.5 metres tall, thus satisfying the jurisdictional tests at s 14A(1). The applicant says that, before it was pruned, the bamboo blocked sunlight to his north-facing sunroom windows through winter, from April to October. Based on the onsite view, I have no doubt that, for much of that time, there was a severe obstruction of sunlight. However at the time of the hearing, with the reduced height of the bamboo, it is not clear that such an obstruction exists. As discussed in Tooth v McCombie [2011] NSWLEC 1004, the obstruction must be severe at the time of the hearing, not at the time of the application. The respondent provided shadow diagrams for the winter solstice, hourly throughout the day, based on a height for the bamboo of 4 metres. He had prepared these diagrams himself using a website and I rely on them as a rough guide only. They show that at a height of 4 metres the bamboo would obstruct only the bottom part of the floor-to-ceiling glass doors across the northern wall of Mr Kilpatrick's sunroom. I also note that other structures, including trees, eaves and Mr Kilpatrick's large birdcage, contribute partially to an obstruction of sections of these windows. I am not satisfied that there is a severe obstruction of sunlight to these windows caused by the bamboo, and therefore cannot make orders under Part 2A. I note that bamboo is a fast-growing plant and that a severe sunlight obstruction may occur again in future. Should that happen, Mr Kilpatrick may make a new application to the Court.

Part 2 - Injury 8If the bamboo caused mould, slime or moss to grow on the outdoor paved area of Mr Kilpatrick's property, and should that mould, slime or moss create a slip hazard, the risk of injury is a result of the presence of mould, slime or moss and is not directly caused by the tree. However, even if I accept that the risk is caused by the tree, the principle stated in Barker v Kyriakides [2007] NSWLEC 292, further extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, would apply here. That is, a reasonable amount of maintenance is expected by those living in urban environments with trees and this "...should extend to the cleaning of such surfaces as paving and paths and the like" (Hendry at [14]). Therefore, this part of the application is dismissed.

Part 2 - Damage 9The fence is a 1.8-metre high colourbond fence along the common boundary. It sits atop land supported by a low retaining wall that is a short distance within Mr Kilpatrick's property, and that is perhaps from 200 to 600 mm high. There is disagreement between the parties regarding changes in ground levels on either side of the fence during the last six years. Each party claims that changes within the other's property have led to displacement of the fence. 10Mr Kilpatrick lodged a complaint with Sutherland Shire Council in 2008 regarding the state of the fence, saying that works on Mr Youlten's property were causing the fence to be displaced. Photographs taken by Mr Kilpatrick at that time show that there was some minor displacement, though its cause in unclear. Now, along some sections of the fence, the top rail is displaced southward (into Mr Kilpatrick's property) by approximately 200 mm. In several places, lower on the fence, there are bulges in the colourbond panels. Observations during the onsite view revealed that these are located where large clumps of bamboo grow against the fence and, near their base, are pushing against the fence. Based on these observations I accept that the bamboo has at least contributed to damage of the fence, and is therefore a cause of damage. The test at s 10(2)(a) is satisfied and I can make orders for the damage to be remedied. According to Mr Kilpatrick, remedy of the damage requires straightening of the fence and replacement of four panels. 11With regard to apportioning the costs of this work I note that, according to Mr Kilpatrick's own submissions, the fence was partially damaged in 2008, prior to the presence of bamboo. It is unclear what had caused such damage - each party asserts that actions on the other's property had caused the damage. Therefore the costs of repair shall be shared equally between the parties. The bamboo is growing vigorously, adjacent to the dividing fence. Should it cause further damage in future, this would be a change in the situation and, as described in Hinde v Anderson & anor [2009] NSWLEC 1148, Mr Kilpatrick could make a new application to the Court.

Root barrier 12Mr Kilpatrick wants a root barrier installed along the boundary to prevent the bamboo spreading into his property. Mr Youlten says there is a black plastic barrier in place already. Mr Kilpatrick pointed out one bamboo shoot on his property at the hearing. The lack of shoots along almost the entire boundary, bar that one shoot, suggests that Mr Youlten's claim is correct and that the barrier is largely doing its job. Given the amount of work that would be involved in installing a root barrier here, I see no reason to order such when only one shoot has sprouted on Mr Kilpatrick's property.

Orders 13Based on the foregoing, the orders of the court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing. (3)On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting. (4)Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2). (5)The works in (2) are to be completed within 90 days of the date of these orders. (6)The applicant and the respondent are each to pay 50% of the cost of the works.

D Galwey Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2014