McGregor v Hatcher

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – fig tree that caused damage has been removed – application to remove neighbouring bamboo – application for repairs to property – whether trees have damaged or are likely to damage property – whether the respondents could have reasonably prevented the damage – orders to remove bamboo and repair fence – Pt 2A application – neighbouring bamboo hedges – obstruction of sunlight – Pt 2A application not pressed

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pts 1, 2, 2A, ss 4, 7, 9, 10, 12, 14B
Trees (Disputes Between Neighbours) Regulation 2024, s 4

Texts Cited: Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category: Principal judgment

Parties: Elizabeth Patricia McGregor (Applicant)
Bruce James Hatcher (First Respondent)
Susan Jane Hatcher (Second Respondent)

Representation: Counsel:
B Necovski (Applicant)
A Hannam (First and Second Respondents)
Solicitors:
WMW Lawyers (Applicant)
Prandium Legal Pty Ltd (First and Second Respondents)

File Number(s): 2024/408902

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Elizabeth McGregor (Ms McGregor) seeks orders from the Court for her Beacon Hill neighbours, Susan and Bruce Hatcher (the Hatchers), to remove and prune bamboo on their property, to install root barriers, and to repair parts of her property she says were damaged by the Hatchers’ trees. Ms McGregor made her application to the Court pursuant to both s 7 (Pt 2 – damage to property or risk of injury) and s 14B (Pt 2A – high hedges obstructing sunlight or views) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

2. The Hatchers have removed a fig tree that damaged Ms McGregor’s property. They contest other elements of damage, and they value the privacy provided by their vegetation.

3. The hearing began onsite on 10 February 2025, allowing the Court to view the trees and both properties and to hear evidence and some submissions. The hearing continued in Court on 17 February 2025 to hear remaining submissions. Along with their own and supporting statements, the parties filed reports from arborists Hugh Millington (McGregor) and Melanie Howden (Hatcher), and engineers Edward Bennett (McGregor) and Timothy Hoare (Hatcher). Mr Millington and Mr Bennett gave oral evidence at the onsite hearing.

4. The onsite view took considerable time, in no small part due to the poor preparation of Ms McGregor’s application. Most elements of the application – which trees it referred to, where the applicant’s property was damaged, which parts of the dwelling were affected by the bamboo’s obstruction of sunlight – required step-by-step clarification during the preliminary view. This took excessive amounts of time, requiring a further hearing a week later to complete submissions. We waited for some time to access rooms within Ms McGregor’s dwelling to be shown the obstruction of sunlight supposedly relevant to her Pt 2A application, only for Mr Necovski, Counsel for the applicant, to later explain to the Court that the Pt 2A application was no longer pressed. This wasted not only the Court’s time but also the Hatchers’ time and expense in preparing their response to the Pt 2 application and attending the second hearing, which should have been unnecessary. Ms McGregor’s Pt 2A application was poorly prepared, leaving the Hatchers unsure which windows were obstructed by their bamboo, and when the obstruction might occur; and ultimately, the Pt 2A application was not pressed.

Framework for this decision

Damage or injury

5. Pursuant to s 7 (Pt 2) of the Trees Act, Ms McGregor applied for orders to remove trees on adjoining land, and for the Hatchers to take measures to remedy property damage and to prevent further damage or to pay compensation for the cost of repairs. These are orders the Court can make at s 9 of the Trees Act if the Court is satisfied of the relevant jurisdictional tests. Firstly, at s 10(1) of the Trees Act, the Court must be satisfied that Ms McGregor has made a reasonable effort to reach agreement with the Hatchers and that she gave the required notice of the application. Secondly, at s 10(2) of the Trees Act, the Court must be satisfied that the Hatchers’ trees have caused, are causing, or are likely in the near future to cause, damage to Ms McGregor’s property, or are likely to cause injury to a person. The Court must consider matters at s 12 of the Trees Act before making orders.

6. Ms McGregor also sought the cost of an arborist report ($2,640 at Question 14 of Form H, Exhibit A3). Commissioners of the Court do not have the power to award costs, so Ms McGregor would need to file a Notice of Motion with the Court should she wish to pursue that.

7. Statements filed by the parties included extraneous material pertaining to historic perceived wrongs, such as illegal fencing works and tree removal, other fence issues not related to the trees, pruning of lilly pillies on the applicant’s land, alleged threatening behaviour, and so on. I have reviewed all material filed with the Court, but refer below only to issues relevant to this decision.

Obstruction of sunlight

8. Ms McGregor also applied for orders to prune and remove bamboo pursuant to s 14B (Pt 2A) of the Trees Act. During the hearing, Mr Necovski explained that Ms McGregor no longer pressed her Part 2A application. For completeness, I will refuse the Pt 2A application in the orders below.

Reasonable effort

9. The parties are separated by more than a dividing fence. Interactions between Ms McGregor and her family and the Hatchers have been less than friendly. Ms McGregor sought mediation with the Hatchers through the Community Justice Centres, without success. They were most unlikely to reach agreement. Ten minutes into the hearing we adjourned for 15 minutes while the parties sought to negotiate on some elements of the application, but they reached no agreement. I am satisfied that Ms McGregor made a reasonable effort to reach agreement with the Hatchers. The hearing timeframe set down by the Court allowed for the required notice of the application.

The trees

10. Ms McGregor’s claim details form (Form H) was poorly prepared, requiring clarification of the trees that are the subject of her application at the onsite hearing. The plan she prepared shows four trees, T1–T4, which were described as a fig tree (T1) near the north-western corner of the Hatchers’ property and three groups of bamboo along the Hatchers’ eastern boundary.

11. T1 has been removed. Mr Millington described it as a weeping fig (Ficus benjamina) that was less than a metre from the boundary fence, approximately 9 metres tall, with a stem diameter of 400 millimetres (mm). Although T1 has been removed, it is still taken to be situated on the land for the purposes of these proceedings: s 4(4) of the Trees Act.

12. Ms Howden described the Hatchers’ bamboo as Bambusa textilis, 6–10 metres tall. Bamboo is a tree for the purposes of the Trees Act: see Trees (Disputes Between Neighbours) Regulation 2024 at s 4.

Damage

13. Ms McGregor claims trees have damaged several parts of her property.

Concrete driveway

14. Ms McGregor’s concrete driveway forms the handle of her battleaxe property, reaching eastward from the street up to the higher land where her dwelling sits. Several of the driveway’s concrete slabs have been displaced or lifted, so that a height difference exists where they meet.

The applicant’s evidence and submissions

15. Roots can be seen along the edge of the concrete driveway. Mr Millington identified them as roots of the fig tree by the white latex within when cut. Mr Millington observed roots 45–125 mm in diameter against the driveway’s southern edge, being the edge nearest the Hatchers’ property, from the top of the driveway down to the vicinity of the fig tree. Numbering concrete slabs from the top of the driveway, Mr Millington noted that slabs 2, 4 and 5 were raised. While acknowledging that analysis of the damage might fall outside of his area of expertise, Mr Millington thought that fig tree roots were a potential cause of the damage. Remaining roots would not cause further damage because the tree has otherwise been removed and the roots will decay over time.

16. Mr Bennett generally concurred with Mr Millington’s findings and opinion. After visually inspecting the driveway, he concluded that the fig tree’s roots had damaged it, creating trip hazards, although it was still functional for vehicle traffic.

17. Mr Necovski submitted that the uneven nature of the driveway creates a trip hazard, which is particularly problematic for Ms McGregor due to her age and limited mobility.

18. Ms McGregor’s daughter, Catherine McGregor, stated during the onsite view that she noticed damage developing over a couple of years.

19. Mr Millington noted the possibility of grinding concrete slabs to remove trip hazards. Mr Bennett recommended in his report that the driveway should be removed and replaced as water may enter at joints, affecting further durability. He thought grinding was less suitable as the grinder might expose reinforcing within the concrete. Ms McGregor obtained a quote of $18,700 from Mortimer Landscape Construction to remove and replace the driveway.

20. During his oral evidence onsite, Mr Bennett changed his opinion. He thought the best option to repair the driveway would be to remove one slab at the driveway’s top end and the slab nearest the road, leaving the ones between, before replacing those two slabs with new slabs and constructing a new driveway over the remaining slabs, using their support. He estimated that this might cost $60,000.

The respondents’ evidence and submissions

21. Mr Hoare, an engineer, wrote in his report that the driveway is approximately 40 years old. Its concrete slabs are separated by expansion joints, with no sign of dowel or reinforcement across the joints. He did not express a clear opinion on the cause of the damage, but noted several potential causes.

22. Ms Howden thought the fig tree’s roots were possibly a cause of damage to the driveway, but no further damage will occur. She noted that roots along the driveway would have been visible for many years.

23. Mr Hannam, Counsel for the respondents, submitted that there is no evidence that roots are under the driveway, so one cannot be sure that the fig tree’s roots lifted the slabs.

24. The Hatchers have lived here since 2001. They say they were first made aware of possible root damage to Ms McGregor’s driveway on 27 May 2024 when they received notification of this from her solicitor. They immediately engaged an arborist and the tree was removed on 4 June 2024. Their offer to remove roots along the driveway was declined.

25. The Hatchers have noted that Ms McGregor and her family members use driveway regularly and would have seen roots along driveway and noted the damage, but did not raise this until May 2024.

26. Mr Hoare said that only slabs 5 and 6 require remediation, and this could be achieved by applying screed to concrete below the trip hazards and grinding the adjacent edge of the raised slab. Mr Hannam submitted that this solution would remove the trip hazards and should be preferred over more expensive solutions that were disproportionate to the damage. The Hatchers should not pay for Ms McGregor to upgrade her 40-year-old driveway.

27. The Hatchers obtained a quote of $2,860 from Cavcrete Concreting (Cavcrete) to excavate sections of the driveway to make it flush and remove trip hazards, and to install dowel at the joints to prevent future movement. Cavcrete alternatively quoted $11,850 to demolish and replace the entire driveway. Cavcrete subsequently provided a further quote of $1,485 to do the screeding and grinding recommended by Mr Hoare.

Findings

28. With the benefit of the site view and the four experts’ opinions, I am satisfied that roots of the Hatchers’ fig tree were the principal factor contributing to displacement of the driveway’s concrete slabs. Considering the driveway’s age, its condition is fair and the damage is relatively minor. Nevertheless, orders can be made because the Hatchers’ tree caused damage to the driveway. Orders are not required to prevent future damage, as I accept the arborists’ opinion that remaining roots, even if left in situ, will not cause further damage.

29. I am persuaded by Mr Hoare’s opinion that a suitable remedy for the damage involves only applying screed in sections, and grinding other sections, as necessary. On the other hand, Mr Bennett’s concerns regarding water undermining the slabs, and grinding affecting reinforcement, are not based on any evidence before the Court.

30. Before making orders on this element of the application, I am to consider the matters at s 12 of the Trees Act. I have considered those matters. Most relevant to this decision is s 12(h), where the Court is to consider acts or omissions by the applicant that might have contributed to damage, and steps taken by the applicant or respondents to prevent damage.

31. Ms McGregor or her family members were aware of changes to the driveway’s condition for at least two years before informing the Hatchers. They could see roots along the driveway’s edge. Until they undertook repairs to paving on their property, they did not investigate the cause of damage. On the other hand, the Hatchers had no knowledge of damage to Ms McGregor’s driveway. Their fig tree had not caused similar problems on their own property. When they were informed on 27 May 2024 that their tree was damaging the neighbouring driveway, they acted promptly, engaging an arborist to remove the tree only eight days later. The Hatchers had no reason or opportunity to assess the damage earlier, and no opportunity to prevent the damage, so I see no reason for the Hatchers to pay for repairs to Ms McGregor’s driveway. If Ms McGregor decides to repair the driveway, that is a matter for her that does not require orders from the Court.

Upper paved driveway

32. At the top of the concrete driveway, where Ms McGregor’s land flattens out, the driveway and parking area are paved with brick-sized pavers.

The applicant’s evidence and submissions

33. Catherine McGregor described (in her statement of 31 October 2024, in Exhibit A) that roots lifted an area of paving, so contractors were engaged to lift pavers, remove roots, and relay the paving. Photographs show the raised pavers before they were removed and a large root in the bedding material after the pavers were removed.

34. The root was not identified to determine its origin. Mr Millington’s opinion was that the damage resulted from tree roots that originated from the Hatchers’ fig tree.

35. Ms McGregor or her family members told the Hatchers of the damage after it was repaired, but they had noticed it developing over ‘a couple of years’.

The respondents’ evidence and submissions

36. The Hatchers contest that the root was from their tree, saying that its origin has not been demonstrated. They submit that paving in other areas of Ms McGregor’s property required maintenance despite not being affected by tree roots.

Findings

37. Photograph 21, dated March 2024 (Exhibit A4), shows that root that lifted the pavers. The pattern of raised paving shown in Photograph 20, dated January 2024, corresponds with the root’s location. The root’s branching pattern indicates its origin is downslope, from where fig tree roots were identified along the edge of the concrete driveway. There is little doubt in my mind that the fig tree’s roots grew beneath, and lifted, the paving. That is, the fig tree has caused damage to the paved area of Ms McGregor’s driveway.

38. Ms McGregor claimed at question 14 of Form G (Exhibit A3) $3,520 for “removal of all problematic roots.” This appears to be derived from the Mortimer Landscape Construction quote of 18 June 2024. But that quote shows $3,520 for “Pool area, oleander part, main driveway” without reference to roots. The ‘main driveway’ component is $3,020 including GST.

39. Again, before making any orders, I consider at s 12(h) of the Trees Act that the Hatchers had no opportunity to assess damage to the paving and no opportunity to prevent the damage. Again, they were not informed until after the damage was repaired, at which point they immediately removed their fig tree. Catherine McGregor stated during the onsite hearing that she noticed damage developing over a couple of years. Had the Hatchers been informed earlier and removed their tree earlier, the extent of damage may have been minimised. By failing to inform them, Ms McGregor’s own acts, or omissions, have contributed to the damage. The Hatchers acted as soon as reasonably possible to prevent damage. Therefore, the Hatchers will not be required to compensate Ms McGregor for the cost of repairing her driveway paving, and no orders are required on this element of the application.

Fence south of the concrete driveway

40. A timber paling fence runs along the common boundary south of Ms McGregor’s concrete driveway.

The applicant’s evidence and submissions

41. Catherine McGregor stated that roots of the fig tree growing along the fence have loosened several palings.

42. Mr Millington confirmed these roots to be from the fig tree due to the white latex within them when they were cut. He noted that other vegetation that grew on Ms McGregor’s property between her driveway and the fence had been removed, allowing the fig’s roots to be seen.

43. Mr Millington wrote in his report (on p 9): “The areas damaged with direct root contact observed were at 14 and 14.5 metres from the top of the driveway (gate) where five roots measuring 40 to 55 millimetres in diameter were clearly in contact with the underside of the fence. The damage appeared to be to individual palings rather than the whole fence which as a whole appeared not to be impaired or significantly buckled outside of what I would consider general wear and tear.” He further wrote (p 13): “Tree roots in contact with fence palings can be manually removed and fence palings replaced as necessary without the removal of the entire fence.”

44. Ms McGregor thought the entire length of fence needs replacing. She said the Hatchers acknowledged this and issued a fencing notice wanting her to pay 50% of the cost of the fencing works.

45. Ms McGregor claims $9,460 (at question 14 of Form G) to replace this section of fence. This is based on the Mortimer Landscape Construction quote (Mortimer quote) of 23 October 2024 (in Exhibit A4).

The respondents’ evidence and submissions

46. Ms Howden noted that fence palings in contact with the fig tree’s roots were distorted. She wrote that the roots will now decay so they will not cause further damage.

47. Ms Howden noted that Ms McGregor had vegetation between her driveway and the fence. Some star jasmine grew between palings and loosened them, causing minor damage to the fence.

48. Michael Wachjo, an engineer, inspected the fence for the Hatchers. He thought it was in reasonable condition, and not adversely impacted by tree roots.

49. Mr Hoare thought the fence was in fair condition for its age, only requiring the replacement of some palings.

Findings

50. Relying on the experts’ statements and my site observations, I find that the fig tree’s roots have caused minor damage to this fence by distorting or displacing several palings. The fence’s condition is otherwise due to its age. The fence is adequately performing the function of a dividing fence. Orders will be made for the Hatchers to replace loose palings along this section of fence.

Fence east of the Hatchers’ dwelling

51. East of the Hatchers’ dwelling, along the common boundary between the parties’ dwellings, are various sections of fence including a brick section, a paling fence, a metal fence and lattice fencing. This claim relates only to the section of paling fence, which consists of four panels of timber palings approximately 2 metres tall. The Hatchers’ bamboo grows in a garden bed on their side of the fence.

The applicant’s evidence and submissions

52. Mr Millington pointed out that bamboo shoots are growing on Ms McGregor’s side of the fence, so bamboo roots extend across the boundary and are in contact with fence posts. He saw no damage to the brick wall further north on boundary. However, timber fence panels were clearly displaced by pressure of bamboo growth behind. Mr Millington thought most pressure came from bamboo shoots at the top of the fence, rather than from its roots. He thought it very likely that the bamboo would cause further damage. He recommended removing all bamboo within 500 mm of the fence and grinding out bamboo roots within 500 mm of the fence. If bamboo beyond this is retained, he recommended install a root barrier similar to the nearby retaining wall that has prevented bamboo spreading.

53. Mr Bennett, in oral evidence, stated that bamboo has damaged the fence, but the fence is poorly constructed. If the fence were properly constructed, bamboo would not have damaged it.

54. Ms McGregor provided a video showing the bamboo moving in the wind. Ms McGregor claimed $16,500 (at question 14, Form G) to replace this fence. This is based on the Mortimer quote of 23 October 2024. During the hearing, Ms McGregor said that the quote included other sections of fence along this boundary, so she submitted that 50% of this amount would reasonable. She submitted that a root barrier is required to prevent further damage.

The respondents’ evidence and submissions

55. The Hatchers say that they erected the paling fence in 2009 (p 6, Exhibit 1). A photograph taken on 2 November 2009 shows the newly constructed fence (p 44, Exhibit 1).

56. Ms Howden observed that the fence’s posts were installed into loose rubble or stone. She thought that bamboo roots have not damaged the fence. Regarding bamboo stems, she wrote (p 10 of her report): “I am of the opinion that it is unlikely that damage would occur to the fence if the timber supporting posts were adequately installed in the ground.”

57. Mr Hoare wrote (p 10 of his report): “This timber fence measured approximately 2.4m high and was in my opinion in poor structural condition and at the end of its serviceable life.” He noted that fence posts move when pushed, as they were embedded in loose fill with no concrete footing.

58. In 2021, the Hatchers installed stainless steel wire on posts next to the fence to support the bamboo’s stems and prevent them leaning on the fence.

59. The Hatchers submitted that they would lose their privacy if the bamboo were pruned or removed. Privacy screening provided by the bamboo is important to them due to the nature of interactions with Ms McGregor’s family members.

60. The Hatchers provided a quote for $550 from Forest Fencing (Forest Fencing quote) to fix the fence by installing new posts into concrete and securing the fence to these posts.

61. Mr Hannam submitted that bamboo is not the cause of damage, so the Court has no jurisdiction for making fencing orders. However, if orders are to be made, the Court should prefer the fencing works as per the quote for $550 obtained by the Hatchers.

Findings

62. With the benefit of the site view, I find Mr Millington’s observations best describe the bamboo’s contribution to the fence’s condition. Despite the stainless steel wire, bamboo shoots have pushed the top of the fence. I accept the findings of both Mr Hoare and Mr Bennett: the fence was poorly constructed, with its posts placed only in loose material without concrete footings. Had the fence been properly constructed, it might have withstood pressure from the bamboo’s stems. The Hatchers constructed the fence in 2009. Works may have occurred nearby on Ms McGregor’s property since then, but there is no evidence that concrete footings were removed.

63. I observed that the Hatchers have cut, above ground level, the large culms closest to the fence. They have cut the bamboo’s root mass, below ground level, on the side facing their dwelling, but not on the side along the boundary fence. Along the fence, the bamboo’s roots continue to spread beyond the boundary. The nature of this bamboo is such that its root mass will continue to spread vigorously and is likely to cause damage to the fence, even if the fence is repaired or replaced. This bamboo is unsuitable next to the paling fence.

64. Despite its benefits for privacy, all bamboo along and near the timber paling fence must be removed to prevent damage. The Hatchers have other means for obtaining privacy: for instance, their first-floor bathroom has an existing screen, frosted windows and shutters.

65. Orders will be made for the Hatchers to remove all bamboo, above and below ground, within 2 metres of the timber paling fence, and to prevent its regrowth. Removal of this bamboo avoids the need for a root barrier.

66. The Mortimer quote for fencing works seems disproportionate to the circumstances. The Forest Fencing quote to install new posts next to the existing ones, set into concrete, and straighten the existing fence and attach it to the new posts, seems adequate. The Hatchers, being the original constructors of the fence and the owners of the bamboo, will pay the cost of these fencing works.

Other damage

67. Ms McGregor raised several other issues: potential damage to a powerline, the bamboo’s suppression of her own plants, and damage to the gate at the top of her driveway. With the evidence and submissions before the Court, I could not be satisfied that the Hatchers’ trees have caused, are causing, or are likely in the near future to cause, damage to these elements of Ms McGregor’s property. The parties raised other issues, including bright security lights and security cameras, which have not been addressed as they were not relevant to this decision.

Consideration of s 12 matters

68. Where relevant to this decision, I have considered the matters at s 12 of the Trees Act at the various elements of property damage set out above, before making any orders to remedy, restrain or prevent damage.

Orders

69. The Court orders:

70. The Pt 2A application is refused.

71. The Pt 2 application is granted to the extent of the following orders.

72. The respondents are to engage and pay for a suitably insured and qualified arborist or horticulturist to remove all bamboo, above and below ground, within 2 metres of the timber paling fence on their eastern boundary, and to remove any bamboo shoots, above ground, on the applicant’s side of the fence. The works must be done in accordance with the Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016). These tree works are to be completed within 60 days of the date of these orders.

73. The respondents are to take all reasonable steps to prevent bamboo regrowing on their property within 2 metres of the timber paling fence on their eastern boundary.

74. The respondents are to engage and pay for a suitably insured and experienced fencing contractor to carry out the fencing works described in the Forest Fencing Quote of 23 January 2025 (contained in Exhibit 2) and to repair or replace any loose or distorted palings in the timber fence along their northern boundary. These fencing works are to be completed within 90 days of the date of these orders.

75. The respondents are to give the applicant at least two days’ notice of the works in Orders (3) and (5).

76. The applicant is to allow any access required for completion of the works in Orders (3) and (5) during reasonable hours of the day.

77. The exhibits are returned other than exhibits A, B and 2.

D Galwey

Acting Commissioner of the Court

**********