Maloney & anor v Todd & anor

The Part 2 application

1. In applications under Part 2 of the Trees Act, the key jurisdictional test is found in s 10(2). This 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.
2. Injury is not pressed in this matter.
3. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
4. The damage said to have been caused by the bamboo is the cracking on the north-western corner of the applicants' rendered brick dwelling on both the northern and western facades. On the northern façade the crack extends down in a stepped pattern, apparently along mortar joints, from the bottom western corner of the living room window (identified as W1) to a point about 1m above ground level (approximately the height of the internal floor) and then extends horizontally to the north-western corner. The crack then extends in a horizontal direction along the western façade. The crack extends through the render to about the depth of a brick.
5. The following timeline is relevant; the details have been extracted from the evidence tendered by both parties.

• The applicants' single storey brick veneer dwelling is about 40 years old. The applicants purchased their property in June 2008.
• In 2009/2010 the applicants modified and altered their dwelling. Modifications included conversion of a garage to a living room by installing a floor, bricking up a door and relocating a window on the northern façade near the north-western corner and construction of a new garage at the front of the dwelling. Prior to this a large Canary Island Date Palm was removed from the rear western boundary.
• The respondents planted the bamboo in October 2010; prior to planting, a plastic root barrier about 600mm deep was installed along the back fence.
• In April 2011 the applicants rendered the external walls of the dwelling which at that time were said to be in perfect condition.
• At some stage after the rendering the applicants installed an air conditioner on the western façade near the north-western corner. Water drips from the air conditioner.
• In December 2012 the applicants notice a fine crack in the render near the north-western corner.
• [From April 2012/2013 a series of requests via text messages/ phone calls from the applicants to the respondents requesting pruning of the bamboo because of obstruction of sunlight - discussed later]
• In January 2013 the applicants observed the cracks to be wider and into the brickwork.
• In April 2015 the respondents were informed of the cracking in a letter written by the applicants to the respondents' solicitor.
• In late April 2015 an engineer engaged by the applicants inspects the property and prepares a report (the McDonell report - included in the application claim form - Exhibit A).
• The application to the Court is filed in November 2015.

1. The applicants contend that the brickwork was in perfect condition prior to the planting of the bamboo, which they describe as "hungry, thirsty plants".
2. A consulting engineer, Mr Ben McDonell, inspected the applicants' property on 28 April 2015. In his report dated 1 May 2015, Mr McDonell makes a number of observations and comments. He states in part that the 40 year old house is set on a foundation of high clay content; he sighted photographs of the brickwork which show no cracking of the brickwork in 2011. He notes the north-west corner is set back 1500 mm from the northern boundary and the setback increases towards the eastern end of that boundary; the cracks on both facades were about 1.5mm wide at the time of his inspection but he was informed that prior to the recent heavy wet weather in April 2015 the cracks were twice as wide. Mr McDonell then goes on to relate what he understands to be the sequence of events with the planting of what he describes as a "thicket of invasive bamboo" and the applicants' objections to it. He states: In addition to damaging the building the bamboo grows much taller than the 1.8m high Colorbond fence, to around 4m high, greatly reducing the light and amenity and solar access to the living areas.
3. In section 2.0 of his report, Mr McDonell makes a number of comments and recommendations including:

• The cracking in the north-western corner is consistent with structural subsidence of the clay foundation and the building footing supporting it;
• Clay soils do shrink and swell with fluctuations in moisture content. Moisture fluctuations are typically caused by seasonal rain variations, the growth of large thir[s]ty plants near the footing zone of a building, and /or pavements.
• Pavements tend to conserve soil moisture, large plants such as bamboo in our experience are notorious for dewatering soils, causing dehydration/ desiccation of clay soils and associated subsidence.

1. Mr McDonell then makes a number of statements about the bamboo. He states [dot points omitted]: Your neighbour's bamboo growth invades and must be controlled in your side of the fence. In our opinion prolific bamboo is an inappropriate species to have been planted in this location for the following reasons: Growth is difficult or near impossible to control. Excessive plant transpiration dehydrates soil, causing structural subsidence of clay soils such as this. Inappropriately tall height restricts solar access. We note all of these issues are problems with the stand of bamboo your northern neighbour[s] have grown at their southern boundary.
2. Mr McDonell recommends the bamboo be removed as soon as possible, preferably during the winter period when growth is slower. If the neighbours want to keep the bamboo he recommends they plant it 10m further to the north and away from the boundary.
3. In their supplementary material filed in accordance with the Court's Directions made by the Assistant Registrar on 14 December 2015, the applicants include further photographs indicating the widening of the cracks and evidence of further fine cracks elsewhere along their northern façade.
4. The respondents filed their evidence and response within the directed time frame. The respondents' Evidence (Exhibit 1) includes an arborist's report prepared by Ms Catriona Mackenzie.
5. The respondents provide a number of referenced alternative reasons for the cracking of the applicants' dwelling, these include:

• Reactive soils and the impacts on them of long wet periods, long dry periods, leaking pipes leading to localised wet spots, uneven watering and planting around a house, and overflow from air-conditioners and hot water systems leading to localised wet spots.
• Changes associated with alterations and additions such as where framing has been altered to insert openings, additional loading of footings and foundations; and changes where new and old sections are keyed together.

1. Specifically, the respondents state that the western side of the house was previously bare soil but has since been paved; there is a combination of paving and bare soil along the northern façade; apart from the respondents' bamboo there are plants growing on the applicants' property on the northern side as well as other nearby gardens near the north-western corner; the applicants' air conditioner near the north-western corner, below the crack, constantly drips water against the side of the dwelling as does a hot water system towards the middle of the northern façade.
2. In regards to the additions and alterations, the respondents contend that the cracks occurred after the conversion of the garage to a lounge room. This involved the construction of new piers above the concrete slab floor of the former garage, new bearers and joists to support the new floor. They submit that if the new piers are bonded into the existing structure, the additional loading may have exerted pressure on the external brickwork. Photographs included in the evidence indicate that the brick piers are mortared against the brickwork and that an additional brick has been added to at least one pier. The respondents maintain that the conversion and partial widening of an existing doorway to insert a window required cutting of the bricks. The window is wider, higher and closer to the north-western corner of the dwelling; the respondents argue that this will have altered the previously undisturbed brickwork.
3. Apart from the conversion of the old garage into the lounge room, the respondents query whether the roof of the new garage has been constructed in a way that places additional loading on the walls of the existing dwelling. During the hearing it was established that the roof of the new garage is essentially a separate entity and therefore unlikely to be a cause of the cracking.
4. Photographs in Exhibit 1 show the large date palm that was present prior to the modifications. The respondents contend that this tree would have drawn water from the soil adjacent to the dwelling and its subsequent removal may have contributed to soil instability near the affected corner.
5. Ms Mackenzie was asked to provide an opinion as to whether the respondents' bamboo is causing damage to the applicants' dwelling. She notes that clumping types of bamboos are commonly considered by the horticultural profession to be acceptable landscape plants, especially for narrow beds, as they form discrete generally non-invasive clumps, especially compared to the 'running' or rhizomatous forms.
6. In preparing her report, Ms Mackenzie visited the applicants' property and confirmed the observations noted by the respondents. She mentions established shrubs in the property to the north-west and opines that, unlike the garden bed in which the bamboo is planted, it is unlikely that a root barrier was installed between those plants and the applicants' property. Ms Mackenzie notes the healthy condition of the bamboo and the watering system; she states she was informed that the bamboo was watered for about 1 hour on a weekly basis unless sufficient rainfall has been received.

Findings

1. Having considered the evidence provided by the parties and having inspected the two properties, I am satisfied that there is more than a hypothetical possibility that the bamboo could be a cause of the damage to the north-western corner of the applicants' dwelling. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [179] determined that a tree the subject of an application need only be a cause in order to satisfy s 10(2) and enliven the Court's jurisdiction to further consider what, if any orders should be made. This requires consideration of any relevant matters in s 12 of the Trees Act.
2. Of particular relevance is s 12(h) - things other than the trees and actions of the parties. I have to agree with Ms Mackenzie that Mr McDonell's report is deficient as it ignores all other possible causes of swelling and shrinking of reactive clay soils, and indeed, of any impacts the alterations may have had on the loading on the existing slab floor and external walls and their footings and foundations. He has not indicated how he came to his conclusions, including how and what he investigated, nor his sources of information - particularly in regards to the growth habits of bamboo.
3. No consideration has been given to the removal of a reasonably large date palm that was growing in the immediate vicinity of the western façade near the north-western corner and the changes in soil moisture that may have eventuated. While the paving of the western side may have been intended to retain moisture it also prevents recharge. The dripping overflow pipe from the air conditioner is a direct and constant point source of water very close to the affected corner. No consideration has been given to other nearby gardens.
4. While the applicants' case rests on the co-incidence of the cracking with the planting of the bamboo, it is also co-incidental that the removal of the date palm, the alterations, air-conditioner and paving all occurred over a slightly longer but similar time frame in the immediate area of the most severe cracking. Had nothing on the applicants' property changed in that period and the only change was the planting of the bamboo then the balance of probabilities may be tipped in that direction. However, given the many other possible causes of the damage and the insufficient certainty of degree of impact of the bamboo, no orders will be made for any intervention with the bamboo, nor for any compensation for the repair of the render.
5. I also note that the applicants, on the information provided by them in the application claim form, were aware of the cracking in late 2012 but did not inform the respondents until April 2015. Thus the respondents were not afforded an earlier opportunity to inspect the damage and consider their position.

The Part 2A application

1. The applicants contend that the respondents' bamboo severely obstructs sunlight to three windows of their dwelling. The nominated windows are W1 - lounge room, W2 - dining room, and W 3 - kitchen. All are north-facing. On the day of the hearing the height of the bamboo, when measured from the applicants' property opposite W2, was about 3.35m.
2. The applicants are seeking orders for its reduction and maintenance to a height between 2.5-2.8m. The respondents argue that the height is necessary for the privacy of their first floor rooms.
3. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied. There is no dispute that the bamboo plants are planted so as to form a hedge and which rise to a height of at least 2.5m and therefore satisfy s 14A. They are therefore trees to which Part 2A applies.
4. The next relevant and key test in applications made under Part 2A is found in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
5. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
6. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, such as the winter solstice, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
7. The meaning of 'severe' has been discussed in a number of cases, however in the context of obstructions of sunlight and views the most apposite meanings might be 'harsh' or 'extreme'. Thus by its use of the word 'severe', the Act sets a high bar.
8. In Drewett v Best [2010] NSWLEC 1305 at [17], the Court accepted the word 'sunlight' to be 'direct sunlight' rather than simply daylight.
9. In attempting to prove their claim, the applicants used a digital Lux Meter to take (mostly) daily light readings from seven locations on their property - six locations within the dwelling and one from their backyard. The time was recorded (mostly between 12.00 and 1.00 pm), as was the weather (sunny or cloudy). The meter was positioned in the centre of each room, in a similar elevated position and distance from the window; the venetian blinds were fully open at the same 90° angle. The rooms included the three nominated windows, a playroom towards the south of the dining room and two north-facing bedrooms unobstructed by the bamboo. The light readings are tabulated in the application claim form. Unfortunately, the applicants did not include any information as to the recommended light levels for particular activities. The tables also indicate light levels after pruning events.
10. Based on these readings, the applicants seek to demonstrate that in all weather conditions, the three nominated windows which are affected by the bamboo hedge receive significantly less light than the windows unaffected by the bamboo.
11. In addition to the table of readings, the applicants include photographs taken from within the dwelling though the nominated windows, which they maintain demonstrate the oppressive impact of the bamboo.
12. The respondents' evidence includes an extract from AS/NZS1680 - Interior Lighting - General Principles and Recommendations - which provides the recommended illuminance (in lux) for particular activities and representative situations. For example, continuously occupied interiors with moderately easy visual tasks (for example food preparation) has a recommended light level of 240 lux; areas where visual tasks are moderately difficult with moderate detail (for example routine office tasks, reading , writing) require 320 lux and up to 400 lux (for inspection of more detailed work).

Findings

1. Notwithstanding the fact that the Lux meter measures light in general rather than direct sunlight, the tabulated results in the applicants' exhibits indicate that all nominated windows/ rooms receive above the recommended levels for the usual activities in kitchens and living rooms. I accept that the light in these rooms is considerably less than received in the rooms unaffected by the bamboo; however, based on the standard, the levels are acceptable.
2. However, as stated above, Part 2A considers direct sunlight and not simply ambient light/daylight. The applicants have not provided any shadow diagrams which demonstrate the impacts of the bamboo at different heights. Photographs in both the applicants' and respondents' evidence show that the three nominated windows are partially shaded by the bamboo at different times and that the eaves of the dwelling also partially shade the windows however the photographs demonstrate that the windows receive direct sunlight to more than 50% of their area.
3. Therefore on the evidence, I am not satisfied that the bamboo is severely obstructing sunlight to the nominated windows of the applicants' dwelling. As s 14E(2)(a)(i) is not met, the Court's jurisdiction is not engaged.
4. By way of an observation, it would seem that the respondents' privacy would not be compromised if the bamboo were reduced to the suggested 2.8m however, because of my findings in [46] these are not orders capable of being made by the Court.

Orders

1. As a consequence of the foregoing, the Orders of the Court are: 1. The application in its entirety is dismissed.

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Judy Fakes Commissioner of the Court

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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 February 2016