This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: Mrs Koumoukelis, of Burraneer, submitted an application, pursuant to s 7 of Part 2, and to s 14 B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act).
About seven years ago, the respondent, Mr Zaglas, planted Bambusa textilis 'Gracilis' (Slender Weaver's Bamboo) along his northern side boundary, and along a section of the southern side boundary of his rear yard. Bamboo is prescribed in the Trees (Disputes between Neighbours) Regulation 2007 as a 'tree' for the purpose of the Act. The application under Part 2 relates to alleged damage resulting from roots of the bamboo encroaching into the applicant's rear yard. The boundary runs approximately east - west, and is currently delineated by a steel panel fence.
In her application under Part 2, Mrs Koumoukelis seeks orders to:
1. Remove the bamboo root matter from the lawn area of the rear yard closest to the southern boundary of her property by cultivation, and dispose of roots.
2. Replace the lawn turf and establish the new lawn for ongoing health.
3. Rebuild the low brick wall, including integrating a root barrier, and drainage behind the wall, if roots have disturbed the low brick wall parallel to the boundary.
4. Reinstate the fence on the common boundary, as necessary.
5. Install a root barrier to one metre depth along the boundary the length of the lawn area within the applicant's rear yard.
6. Require the respondent to pay the cost of these works.
Under Part 2A, Mrs Koumoukelis claims that the bamboo hedges severely impact her water views of Burraneer Bay to the south, south-west. She seeks orders to:
1. Prune the hedge growing inside the respondent's northern boundary to a height of no more than four metres, and maintain that height by pruning twice a year in autumn and spring. Include pruning of bamboo protruding over the boundary into the applicant's land, and all pruning is to be completed by an AQF level 3 arborist.
2. Prune the hedge growing inside the respondent's southern boundary to a height of no more than four metres, and maintain that height by pruning twice a year in autumn and spring.
Alternatively, should the respondent remove the hedge and replant, Mrs Koumoukelis seeks:
1. Planting of appropriately selected hedging species which are to be maintained at a maximum of four metres in height by pruning twice a year in autumn and spring. This includes pruning to restrict the hedge width along the boundary, as required. A suggested species list has also been included.
2. That the applicant and respondent are to provide all reasonable access to one another's property for the purpose of complying with these orders and for the works to be carried out safely and efficiently on 3 days' notice.
3. That the respondent pay the cost of these works.
Mr Zaglas rejects Mrs Koumoukelis' claim for root damage, and her proposed order for installation of a root barrier, but is open to negotiation with respect to the hedge pruning.
[2]
The hearing
The hearing commenced with an inspection of the rear yard of Mr Zaglas' property, where the bamboo hedges grew on both the northern and southern sides. On the northern side closest to the residence, the bamboo was located in a raised garden bed about 500mm tall and about 500mm wide, which runs adjacent to and parallel to the common side boundary.
The Court next inspected Mrs Koumoukelis' rear yard, and roots were evident in the soil that had been disturbed and excavated along the applicant's southern boundary. In the absence of other plants growing nearby, and based on the arboricultural expertise that I bring to the Court, I confirmed these roots as mainly emanating from the bamboo. The poor condition of the lawn, and recent excavation in proximity to this boundary was also evident. The street slopes from north to south, and, based on the height of the soil resting against a brick retaining wall built up against and below the boundary steel fence, it appears that the soil surface is about 500 mm above the soil level in the Zaglas' garden beds containing the bamboo.
The parties assembled in the applicant's sunroom for oral submissions, and sitting and standing views were noted from south facing windows in this room (V1) and from the adjacent rear verandah (V2). Mrs Koumoukelis was represented at the hearing by Ms Hammond of Counsel, Ms Fiona Ta'akimoeaka from Cordato Partners Lawyers, her husband, Mr Koumoukelis, and Ms Jackie Brown, of New Leaf Arbor. Mr Zaglas was self-represented, and was accompanied by his wife, Mrs Zaglas.
The application under Part 2 for damage was addressed initially.
[3]
Jurisdictional requirements - Part 2
With respect to s 7, 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 Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, notwithstanding that extensive correspondence by the respondent with the applicant's Solicitors reflects difficult and frustrating negotiations. Mr Zaglas also provided evidence showing unsuccessful attempts to organise mediation with Mrs Koumoukelis through the Community Justice Service.
Preston, CJ notes in Robson v Leischke [2008] NSWLEC 152 (Robson), at [192]-[196], that the "reasonable effort to reach agreement with the owner of the land on which the tree is situated" does not need to happen prior to lodgement of an application under the Act or prior to the preliminary hearing of a tree application.
At [194] of Robson, Preston CJ observed that while it is desirable that the discussion takes place prior to commencement of proceedings under the Act, this provision makes it clear that such an attempt must have occurred prior to the making of an order as a result of a hearing of an application, not prior to the making of the initial application to the court. At [195], his Honour notes the Act's requirement of "a reasonable effort to reach agreement", is less demanding on the applicant than "reasonable attempts", or "all reasonable attempts", as applies in provisions of other statutory enactments.
The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
In respect to possible and or future damage or injury, in Robson at [225], Preston CJ states:
"the mere fact that a tree is situated on a person's land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property",
and at [56], discussing the issue of nuisance, his Honour states that "mere encroachment is insufficient to complete a cause of action."
At [166] in Robson, Preston CJ discusses the issue of damage to "property on the land", as raised in s 7 of the Act. In part, the Chief Judge found:
"Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006."
At [171], Preston CJ notes that:
"leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
In this respect, Preston CJ at [172] of Robson, refers to Barker v Kyriakides [2007] NSWLEC 292 (Barker), whereby the shedding and dropping of such material, ordinarily "will not provide the basis for ordering the removal of or intervention with an urban tree."
In his letter to Mr Zaglas dated 21 November 2017, and copied on page 3 of his affidavit, Mr Frank Koumoukelis highlights the "large amount of leaves in our yard which requires constant maintenance", but based on his Honour's interpretation in Robson, and in Barker, no redress is available under the Act.
In Barker, at [20], Moore C, Hussey C and Fakes AC, introduced a tree dispute principle to address the questions of what might be regarded as ordinary maintenance and interaction between residents and trees in an urban environment. This principle states:
"For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment."
Though this tree dispute principle published in Barker was established on the basis of refuse drop, it also applies here in relation to the annoyance or discomfort resulting from root encroachment.
Beyond the roots of the bamboo being present, and that they have likely dried out the soil, the applicant has provided sparse evidence of consequential damage, either past, current or imminent. The claim with respect to lawn damage requires consideration of context.
Mr Zaglas provided an arboricultural and landscape report dated November 27, 2018, from Mr Andrew Macartney, at Annexure 1 of his affadavit. Though Mr Macartney failed to acknowledge reading and agreeing to be bound by the Expert Witness Code of Conduct (Uniform Civil Procedures Rules, 2005, NSW), and thus the weight placed on his evidence must be discounted, some of his observations are pertinent.
At para 5 of his Discussion, while acknowledging the "struggling lawn", Mr Macartney notes the particularly dry conditions experienced throughout 2018, and listed factors such as pests and diseases, incorrect soil pH, mowing too low, and other curatorial practices, as other possible causes. He noted within his Management Options, on page 6, the observation that it is normal for roots to cross property boundaries as part of nature. On page 7, Mr Macartney recommended a suitable watering regime be adopted for the turf, and removal of occasional emergent bamboo corms by pruning and hot water application.
Ms Brown had read and agreed to be bound by the Expert Witness Code of Conduct. In her initial report, attached to Mr Frank Koumoukelis' affidavit, at page 16, she recommended Bamboo removal at 6.1. If the bamboo was retained, she recommended regular pruning (6.2), the installation of a root barrier (6.3), and, at 6.4, regular maintenance, comprising continual control of shoots by pruning, and "replacement of the lawn and additional watering adjacent the bamboo, or replacement with a low water use garden bed." In a copy of a letter to Mr Zaglas dated 21 November 2017, and included at point 4 of page 4 of his affidavit, Mr Frank Koumoukelis advised that Ms Brown's "recommendation 6.4 is not acceptable to us as it is considered too burdensome."
At the hearing, it became apparent that the applicant had attempted only minimal lawn care in order to compensate for root congestion and soil drying. Other than Seasol having been applied, no evidence of maintenance was submitted.
The recommendations by the respondent's arborist, and by Ms Brown at 6.4 of her report, constitute house exterior and grounds maintenance as referred to in [20] of Barker, and it appears that no such measures have been attempted. The applicant had apparently not been advised that the sandy site soil would likely be water repellent, and if identified through simple testing, treatment of this would very likely assist lawn growth.
While the applicant provided photos of vegetables and fruit trees previously growing close to their southern boundary, these apparently have subsequently been relocated. There was no evidence of damage to fruit trees, crops or ornamental gardens submitted. Given that drying of soils by roots has specifically been excluded as a basis for action in Robson, no sufficient or valid evidence of consequent damage caused by bamboo roots has been provided.
With all this in mind, and based on the expert reports, and submissions by the parties in their affidavits and at the hearing, I am not satisfied that the incursion of bamboo roots into the applicant's property constitutes damage, and thus the claim is not one that can be remedied by the Act.
Even if I am wrong, and damage does exist as per the jurisdiction of the Act, I am required to balance consideration of the extent of the damage with discretionary factors in s 12 of the Act.
[4]
Discretionary matters - s 12
In making an order, the Court considers relevant matters in s 12 of the Act.
The trees are located in the respondent's property parallel to and close to the boundary: s 12(a).
In considering s 12(b), the trees are not protected by Council's Tree Management controls under its Development Control Plan.
With respect to s 12(b2), pruning of the Bamboo hedge bordering the properties has recently been completed. This has significantly reduced the extent of foliage overhanging into the applicant's property along with the height. This pruning can be repeated without high likelihood of damage to plant health. Another hedge that had been growing between the two houses, and causing annoyance to the applicant, has been removed by the respondent.
As highlighted in Mr Zaglas' affidavit, the bamboo contributes significantly to privacy, to protection from the sun, to landscaping, and to the amenity and scenic value of his land: (s 12(b3)(e)).
Given the slope of the land, and the difference of about 500 mm between the soil levels of the adjoining properties, the bamboo is likely to be providing benefit to soil stability, and to reducing localised erosion and run off (s 12(g). This difference in levels may also compromise the effectiveness of the recommended root barrier in terms of root exclusion, given that Ms Brown indicated that the roots are currently emerging into the applicant's property from below an existing brick wall, constructed along the boundary to a depth of about 700mm below the applicant's soil level.
Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. Though it was initially misidentified as a running variety, the bamboo was subsequently confirmed as a clumping species, a group generally considered less invasive than running varieties. While its roots have clearly grown into the applicant's soil, and competed with lawn, as discussed at [28] to [31], the applicants appear to have been unwilling to employ maintenance measures in response, in order to prevent or rectify such damage.
[5]
Conclusion
I have examined the Bambusa textilis 'Gracilis' growing parallel to and close to the common boundary and have reached the following conclusions. Based on Robson, the issue of root accumulation impairing lawn growth does not constitute damage; normal maintenance options, as highlighted in Barker, have not been considered or implemented, and there are various s 12 discretionary considerations that weigh against intervention, even if damage had been proven. The test that is posed, by s 10(2) of the Act, that the bamboo has caused any damage, is causing any damage or is likely to cause any damage in the immediate future, or pose any risk of injury to persons, has therefore not been satisfied, and the Part 2 application is dismissed.
[6]
Jurisdictional requirements - Part 2A
In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].
[7]
Do the trees form a hedge?
The first test is s 14A(1), that is, are the trees planted along the northern and southern boundaries of the respondent's rear yard, a hedge for the purpose of the Act?
Section 14A(1) states:
(1) This Part applies only to groups of two 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).
These two rows of bamboo, which are between four and five metres tall, thus satisfy s 14A(1).
As s 14A(1) is satisfied, the next step is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a)(ii) states:
(2) The Court must not make an order under this Part unless it is satisfied that:
(a) the trees concerned
…
(ii) are severely obstructing a view from a dwelling situated on the applicant's land.
The applicant's residence is upslope of that of the respondent's. Both dwellings face east. The nominated viewing points are the south-facing upper level windows (V1) and an adjacent rear veranda (V2), and in contention are the water views of Burraneer Bay to the south, south-west.
The height and spread of the northern boundary hedge has recently been pruned, partially exposing the water, but about half of the southern boundary hedge impairs the view.
In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140, and this case was submitted by the applicant's Counsel.
The first three steps of the four step process are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
In applying those principles to this matter, the view in contention is a view of water and the interface with the land in the middle distance, across a side boundary. Though there are structures, as well as other trees in the distance beyond the boundary, from both V1 and V2, either sitting or standing, about half of the available water view is obscured by the respondent's southern hedge. With the benefit of a ladder on the porch, I could see that the removal of the obstruction will make a major impact. It is unclear whether the rooms from which the view is said to be lost are the main living areas, but one is a sunroom, adjoining the kitchen, and therefore qualifies as a living area, as does the rear porch.
While the Court sets a high bar when considering the word 'severe', context is also important. In Haindl v Daisch [2011] NSWLEC 1145, Moore SC and Hewett AC, note at [64]:
"It is clear to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both qualitative and quantitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point…"
In this local context, because highly valued water views have been heavily restricted by the south boundary hedge, I consider it to be a severe obstruction.
As s 14E(2)(a)(ii) is met for the hedge, there is a need to consider the balancing of interests required by s 14E(2)(b). This states:
(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.
In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required:
(a) The hedges are located in the respondent's property parallel to and close to their northern and southern boundaries.
(b) The trees were planted about 7 years ago. The applicant has lived in his property for over 20 years.
(c) The trees have grown to their current height of four to five metres, and higher, in that time.
(d) The trees are not protected by Council's Tree Management controls under its Development Control Plan.
(f) Given the species, the trees are likely to make some, though minimal, contribution to biodiversity.
(h) The trees are not of such a size or in a prominent location to make a significant contribution to public amenity.
(k) The bamboo plants can normally be regularly pruned without unduly affecting their health or function. Pruning may result in thicker growth, and thus enhance the hedge's utility for the respondents.
(l) Being on a higher level, and on the upper floor, the applicant's veranda and rear sunroom overlook the respondent's rear yard, and the hedges contribute significantly to providing privacy for the respondent. They contribute also to protection from the sun, to garden design, to landscaping, and to the amenity and scenic value of his land.
(m) The roof of the house to the south of Mr Zaglas' property is obstructing part of the view of Burraneer Bay, which is also obstructed by the southern boundary hedge. As such, no hedge intervention will be considered where the view is obstructed by both roof and hedge.
(n) The respondents recently contracted their gardener to prune both hedges; the southern boundary hedge was reduced in height to about five metres, and that on their northern boundary to about four metres. Part of the southern hedge needs further pruning to expose water views, and this can be done with little loss of privacy to the respondent, or his neighbour to the south. Pruning of the northern boundary hedge to a height of about four metres has provided scope for views of the water for the applicant, while maintaining a reasonable level of privacy, sun protection and landscape amenity for the respondent. As the view is across both boundaries, the hedges function as a unit with respect to view restriction, and thus my orders relate to both hedges.
(p) The trees are evergreen.
(r) The obstructed window is in a sunroom, which can be considered to be a main living area of the applicants' dwelling. The view is also obstructed from the adjacent exterior veranda.
Overall, the valued water view can be regained for the applicant, while retaining much of the hedge's benefits of providing privacy, sun protection and landscape amenity for the respondent.
[8]
Orders
As a consequence of the foregoing, the orders of the Court are:
1. The application in relation to Part 2 under s 7 of the Act is refused.
2. The application in relation to Part 2A under s 14B of the Act is granted. I make the following orders:
1. Prune the hedge growing inside the respondent's northern boundary to a height of no more than four metres above the applicant's adjacent surface level, and maintain that height by pruning twice each year, once in mid-autumn, and once in mid-spring. This is to include pruning of bamboo protruding over the boundary into the applicant's land.
2. Prune the hedge growing inside the respondent's southern boundary to a height of no more than five metres above the respondent's adjacent surface level along its eastern half, where the view is also encumbered by the southern neighbours' roof, and to a maximum height of four metres above the respondent's adjacent surface level, along the western half of the hedge, beyond which the southern neighbours' roof no longer restricts the water view. Maintain these heights by pruning twice each year, once in mid-autumn, and once in mid-spring. All pruning is to be completed by an AQF level 3 arborist, and comply with the Workcover NSW Code of Practice for the Amenity Tree Industry.
3. The applicant and respondent are to provide all reasonable access to one another's property for the purpose of complying with these orders on 3 days' written notice.
4. The respondent is pay the cost of these works.
[9]
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: 04 April 2019