Shirvani v Rae

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — bamboo — whether the trees are likely to cause damage — compensation refused — orders for maintaining the bamboo — order for access

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 8, 9, 10, 12

Cases Cited: Atkins v Graham [2024] NSWLEC 1372
Barker v Kyriakides [2007] NSWLEC 292

Category: Principal judgment

Parties: Nasim Shirvani (Applicant)
Stuart Rae (First Respondent)
Elizabeth Klingberg (Second Respondent)

Representation: Counsel:
N Shirvani (Self-represented) (Applicant)
S Rae (Self-represented) (First Respondent)
E Klingberg (Self-represented) (Second Respondent)

File Number(s): 2025/414254

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: Nasim Shirvani has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for a neighbouring bamboo hedge (the bamboo, or the hedge) to be pruned and maintained. The hedge is on an adjoining property owned by Stuart Rae and Elizabeth Klingberg. The two properties share a common boundary, being a section of the rear boundary of each property. Mr Rae and Ms Klingberg have a bungalow near their rear boundary and have planted the bamboo hedge in the narrow gap between the bungalow and their rear boundary for privacy screening.

2. In her original application, Ms Shirvani identified the problems she has with the bamboo, but not the orders she seeks. During the onsite hearing Ms Shirvani was directed to send in an amended application form with clear orders, which she did. Those orders were already apparent to all parties at the hearing.

3. Ms Shirvani finds the bamboo drops large amounts of leaves and debris onto her property. Apart from the constant maintenance this requires, she wrote that leaves have blocked and damaged her pool filter. She seeks an order for the bamboo to be reduced to and maintained at a height of 2 metres. She also seeks an order for all bamboo culms overhanging her property to be removed. Although her proposed orders do not include compensation, her application form (Question 14 of Form H in Exhibit A) identifies compensation claims of $1,500 for replacing a swimming pool pump and $250 for an MRI scan required for an injury resulting from yard maintenance. These orders are sought under Pt 2 of the Trees Act (damage to property or risk of injury).

4. Mr Rae and Ms Klingberg wish to maintain the bamboo at a greater height for privacy screening. They proposed alternative orders that they maintain the hedge by pruning it every 6 months at the same height as its recent pruning event, which appeared to me to be around 4–5 metres, and to prune the face of the hedge on Ms Shirvani’s side, for which they would require access to her property.

5. Material relied upon for this decision includes Ms Shirvani’s amended application (Exhibit A) and Mr Rae’s and Ms Klingberg’s filed response (Exhibit 1), which contains their proposed alternative orders and a record of communications between the parties.

6. The onsite hearing allowed the Court to inspect the bamboo and both properties. The parties were self-represented. The Court also accepted some submissions from Ms Shirvani’s husband.

Application to the Court

7. Ms Shirvani applied for orders pursuant to s 7 of the Trees Act, which I copy here.

7 Application to Court by affected land owner

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.

8. Ms Shirvani seeks orders for maintaining the bamboo and for compensation for replacing a pool pump. This fits within the scope of s 7 of the Trees Act – “…an order to remedy, restrain or prevent damage to property on the land…” – as the maintenance order is sought to prevent damage and the compensation is sought to remedy past damage. Ms Shirvani also seeks compensation for medical costs relating to an injury she claims she incurred while clearing bamboo debris from her property. This does not fit within s 7’s scope, as it would not “…remedy …damage to property on the land…” nor would it “…prevent injury to any person…” For this reason, Ms Shirvani’s claim for compensation for an MRI scan cannot be considered here.

9. As required by s 7, the bamboo is situated on land adjoining Ms Shirvani’s property.

Notice of the application

10. Ms Shirvani gave notice of her application as required by s 8 of the Trees Act.

Jurisdiction to make orders

11. The orders that Ms Shirvani seeks for maintaining the bamboo and for pool pump compensation are orders the Court could make at s 9 of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances. Consistent with the limitations at s 7 of the Trees Act (see above at 8), the compensation Ms Shirvani seeks for medical costs does not fit within the Court’s jurisdiction to make orders at s 9 of the Trees Act.

Reasonable effort to reach agreement

12. The application is made in Ms Shirvani’s name, but answers at questions in Form H (in Exhibit A) refer to ‘my wife’ (for instance at question 12: “My wife and I constantly cleaning our backyard and the swimming pool”), so I take it that her husband has completed the form. Therefore, where answers use the first person I assume they refer to her husband.

13. Ms Shirvani’s husband visited Mr Rae and Ms Klingberg to explain the situation some time in 2024. After that, Ms Shirvani and her husband sent text messages to Mr Rae and Ms Klingberg, who replied with offers to prune the hedge. Ms Shirvani did not accept the offers, choosing instead to commence these proceedings.

14. In the eyes of Mr Rae and Ms Klingberg, Ms Shirvani’s refusal to engage with their offers via further negotiations might demonstrate insufficient effort on her behalf. However, in my experience in neighbourly disputes, it is rare for one party to find the other’s viewpoint or attempts at negotiation to be reasonable. Ms Shirvani’s attempts to negotiate may also have been constrained by her level of English language competency.

15. Ms Shirvani sees a problem with the bamboo and has identified the solution she wants. She made a reasonable effort to get Mr Rae and Ms Klingberg to agree to her preferred solution, although it was not a solution that was acceptable to them. I am satisfied that Ms Shirvani made a reasonable effort to reach agreement with Ms Klingberg and Mr Rae: s 10(1)(a) of the Trees Act.

The bamboo

16. Clumps of slender weavers bamboo (Bambusa textilis var. gracilis) are planted in a row, forming a narrow hedge approximately 4–5 metres tall at the time of the hearing. The hedge grows on Mr Rae’s and Ms Klingberg’s property along and against the 2-metre steel panel dividing fence.

Whether the bamboo has caused damage

17. The test at s 10(2) of the Trees Act must be satisfied before any orders can be made.

10 Matters of which Court must be satisfied before making an order

(1) …

(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.

18. Ms Shirvani wrote on p 3 of Form C (in Exhibit A):

“The bamboo trees from the respondent’s property are overhanging into my yard, shedding large amounts of leaves and debris that continuously block the pool filter and create maintenance issues.

The ongoing spread and leaf fall from these bamboo trees have damaged my garden plants and flowers, causing distress and financial loss due to repeated replanting and upkeep.

The constant dropping of bamboo leaves has made it extremely difficult to maintain a clean and safe backyard and sitting area, preventing proper use and enjoyment of my property.”

19. Ms Shirvani and her husband reiterated these concerns during their submissions. They also pointed out bamboo shoots growing on their side of the steel-panel dividing fence along the common boundary.

Nuisance

20. Addressing the maintenance issue first: debris that falls from neighbouring trees might cover pavers, grass or soil, which might be a nuisance for the property owner, but that type of nuisance alone does not give the Court a reason to make orders. Pursuant to s 10(2)(a) of the Trees Act, the Court can only make an order if the tree, or its debris, has caused or is causing or is likely in the near future to cause damage to the applicant’s property. Nuisance that does not include damage does not enliven the jurisdiction of Pt 2 of the Trees Act.

Damage to pool pump

21. Ms Shirvani claims that bamboo leaves and debris have damaged her pool pump and garden plants. She provided an invoice for the installation of a new pool pump in 2025, but no evidence to demonstrate that the need for its replacement resulted from bamboo debris. Even taking her submissions on this at face value, I would not make an order for compensation. Pools require maintenance, including the removal of leaves and debris using a net, a vacuum, a filter, or a combination of these. I copy here the principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

22. The Court has applied this principle consistently, including in other cases involving pool equipment and debris from bamboo: for instance, see Atkins v Graham [2024] NSWLEC 1372.

Damage to plants

23. During the site inspection I observed no damage to Ms Shirvani’s plants that could be directly attributed to the bamboo. Plants in her garden bed next to the dividing fence no doubt compete with the bamboo for water and nutrients, resulting in seasonal or occasional stress, but not in significant or permanent damage that would warrant orders from the Court.

Damage to the dividing fence

24. While at Mr Rae’s and Ms Klingberg’s property, I noted that bamboo clumps nearest the fence, at their bases, are beginning to push against the steel panel fence. I shared this observation with the parties, along with my reasons for thinking this is likely to displace parts of the fence in the near future. Also, culms nearest the fence droop over Ms Shirvani’s property as they grow taller, resting against the top of the fence, where rubbing on the fence might cause minor damage. The taller the bamboo grows, the more likely it is to cause damage. Pursuant to s 10(2)(a) of the Trees Act, the Court can make orders to prevent damage to the dividing fence.

Relevant matters

25. Before making orders, the Court must consider matters at s 12 of the Trees Act. I consider here those that are relevant to this decision.

26. The bamboo is close to the common boundary and grows against the dividing fence.

27. Pruning or removing the bamboo would not require consent from Ryde City Council.

28. The bamboo would tolerate regular pruning to any height.

29. The bamboo contributes to privacy for Ms Klingberg and Mr Rae. Beyond that, it has little in the way of environmental benefits.

30. Ms Shirvani has requested that the bamboo be maintained at fence height, or around 2 metres. Mr Rae and Ms Klingberg offered to maintain the bamboo at its current height of 4–5 metres by pruning it twice each year. They also offered to prune the face of the hedge on Ms Shirvani’s side back to the boundary, which would require access to Ms Shirvani’s property. The nature of their offer seems reasonable. Therefore, in addition to an order for removal of parts of the bamboo close to the dividing fence, this decision will include orders for pruning and property access, the aim being to minimise the potential for future conflict between the parties. To minimise the frequency of property access, pruning will be ordered on an annual basis, not biannually, and therefore to a height of 4 metres to allow for 12 months of regrowth between pruning events.

Orders

31. The Court orders that:

32. The application is granted to the extent of the following orders.

33. For as long as the hedge remains, in April each year beginning in April 2026, the respondents or their contractors are to remove all parts of their bamboo that are within 200 mm of any part of the dividing fence.

34. For as long as the hedge remains, in April each year beginning in April 2026, the respondents, or suitably qualified, experienced and insured contractors they engage and pay for, are to:

(a) prune the hedge so that no part of the bamboo is greater than 4 metres above ground level, and (b) remove any bamboo overhanging the applicant’s property and clean up debris resulting from the works.

4. The respondents are to give the applicant at least 7 days notice of each instance of the works in (3).
5. If given notice as per (4), the applicant is to allow access for the respondents or their contractors to complete the works in (3) during reasonable hours of the day.
6. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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