Woods v Sleeman

Land and Environment Court (NSW)|2020-07-28

Background to the application

In 2015, Claire Sleeman and Jai Sleeman ('the respondents') purchased the residential property where they now live in Ocean Shores, in northern New South Wales. Later that year they installed boundary fencing at their own expense. The following year they planted Slender Weavers Bamboo (Bambusa textilis var. gracilis) on their property along the common boundary they now share with their neighbours Kathryn Woods and Jason Little ('the applicants').
The bamboo grew. Concerned that it was damaging the fence along their common boundary, the applicants contacted the respondents in June 2019, raising issues of damage to the fence and unwanted bamboo shoots growing up on their side of the boundary.
Respective histories of correspondence between the parties, along with other material within the exhibits, demonstrate a level of animosity between these neighbours that is not uncommon in tree disputes. Unable to resolve the dispute, the applicants applied to the Court in April 2020, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the applicants to: install a root barrier; establish clearance of 300 mm between the fence and the bamboo; repair the fence; and maintain the bamboo at a height of no more than 5 metres.
In July 2020, prior to the final hearing, the respondents engaged contractors to repair the fence and install a root barrier. By this time they had also pruned the bamboo.
At the hearing, the applicants still pressed for orders for a root barrier to be installed to the specifications provided by their arborist, and for the bamboo to be maintained below 5 metres in height and clear of the fence.
The respondents' sought alternative orders for the application to be dismissed and for the applicants to reimburse them 25% of the cost of installing the fence in 2015 and 50% of the cost of repairing the fence in 2020.

The hearing

Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. I was satisfied from the material filed with the Court, considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.

Framework for this decision

For the Court to make orders under Pt 2 of the Trees Act, several jurisdictional tests must be passed, to the Court's satisfaction:

A tree, or trees, on adjoining land (s 7) must have caused, be causing, or be likely in the near future to cause, damage to the applicant's property (s 10(2)(a)), or be likely to cause injury to a person (s 10(2)(b));
The applicant must have made reasonable effort to reach agreement with the owner of the land on which the tree is situated (s 10(1)(a)); and
The applicant must have given the required notice of the application (s 10(1)(b)).

The Court can make orders as it sees fit (at s 9) to remedy, restrain or prevent damage to the applicant's property, or to prevent injury, after considering the matters at s 12.

Trees on adjoining land have caused damage

According to the Trees (Disputes Between Neighbours) Regulation 2019, bamboo is a tree for the purposes of the Trees Act. The respondents acknowledged that their bamboo damaged some palings of the boundary fence, minor though that damage may have been, and repaired the fence. Being a boundary fence, it is the property of the respondents and the applicants. Therefore trees on adjoining land have damaged the applicants' property.

The applicants made reasonable effort

After they became concerned about the bamboo causing damage, the applicants spoke with the respondents and corresponded via some written notes and text messages. They got arboricultural advice on possible solutions. They applied for mediation. These efforts were unsuccessful. The respondents were not available at all times due to work or travel commitments, but did finally agree to mediation. The applicants submitted that, by that time, they were not satisfied that the respondents were genuinely seeking an agreed resolution, and proceeded to prepare their application to this Court.
I am satisfied that the applicants have tried to resolve the situation. I accept their explanation for bypassing mediation, given that their first attempt at mediation received no response. Their efforts have been reasonable.

Notice was given

The applicants gave notice of their application as required by the Trees Act.

Consideration of relevant matters

The jurisdictional tests above are met, so the Court can make orders if needed. The fence has been repaired to the applicants' satisfaction. They submitted that the root barrier installed by the respondents is inadequate. They submitted that the respondents' bamboo is likely to damage the fence in future. They pressed for orders for installing a root barrier to specifications they provided, and for maintaining the bamboo's height and proximity to the fence. Below are the relevant issues to be considered at s 12 of the Trees Act.

The location of the trees

The bamboo is planted on the respondents' property along the common boundary they share with the applicants. It has grown against the fence in the past. It grows between the respondents' dwelling and the applicants' dwelling and is close to both.

No permit would be required to interfere with the trees

Permission would not be required from the local council to remove or prune the bamboo, nor would it be required under any Act.

Impact of pruning

The bamboo would tolerate any form of pruning, as new shoots continue to grow and replace those that are pruned or removed.

Benefits and value of the bamboo

The bamboo contributes cooling and shading to both properties. It has no significant environmental, historical or cultural value. It contributes amenity to both properties, but little to the broader landscape.
Most importantly for the respondents, the bamboo provides privacy screening between the two properties. They want to prevent or limit the capacity for overlooking from the applicants' dwelling. Privacy was their primary aim when planting the bamboo, and they do not want the current level of screening that the bamboo provides to be diminished in any way.

Other factors contributing to damage

The respondents pointed to the condition of fencing on their other boundaries, where some deterioration has occurred as a result of age and weather. They submitted that the fence on the common boundary they share with the applicants had suffered similar wear-and-tear. Any additional damage by the bamboo was minor.

Actions taken by the applicants

Ms Woods and Mr Little have attempted to prevent further damage by asking Ms Sleeman and Mr Sleeman to prune the bamboo, to maintain some clearance between the fence and the bamboo, and to install a root barrier.
The applicants obtained an arboricultural report from Peter Gray of Northern Tree Care. Mr Gray recommended installation of a root barrier. On page 6 of his report he wrote: "An example of a suitable root barrier installation is shown in Attachment." On page 12 is the "Diagram of root barrier installation" showing a 300-mm wide trench to a depth of one metre, with plastic lining the side of the trench nearest the bamboo, topped with concrete capping at ground level, and the trench backfilled with soil.
Mr Gray's report does not discuss the site's soil profile, nor does it provide any explanation for the depth of the root barrier in his example. The applicants argued that the root barrier installed by the respondents is inadequate and Mr Gray's specifications should be followed.
The respondents argued that Mr Gray's report does not meet the requirements for an expert witness statement. There are two versions of Mr Gray's report, both dated 9 April 2020. The second version, filed with the Court on 22 June 2020, appears identical to the first (filed with the application on 23 April 2020) except for the inclusion of a statement where Mr Gray agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. The respondents submitted that the report should not be accepted as expert evidence because it was first written as a report only, and the statement confirming that it was prepared as expert evidence was simply added later.
I do not accept that the absence of the author's statement referred to above demonstrates he did not have in his mind his obligations to the Court when preparing the report. It may have been an accidental omission. However, there is some expectation that some further explanation should have been provided within the report, and the date of the report updated accordingly. Regardless, the report provides little assistance to the Court and is not relied upon for determining what has occurred and what should be done. The report provides little information beyond what is either readily available and common knowledge, or has already been provided by the applicants. Mr Gray describes bamboo using Wikipedia as his source. He repeats information provided by the applicants regarding the planting of the hedge and its history. He notes it has grown against the fence. He establishes that it forms a hedge that is more than 2.5 metres tall, which might be relevant if the application was made under Pt 2A of the Trees Act but is irrelevant in this matter. His recommendation of a root barrier is "an example" only. There is nothing in his report to demonstrate that any other form of root barrier would not be adequate.

Actions taken by the respondents

Ms Sleeman and Mr Sleeman have pruned the bamboo, although this occurred some significant time after the applicants' request to do so.
The respondents obtained advice from a bamboo nursery regarding root barriers to restrict bamboo spreading. They received written advice that 300-500 mm is sufficient. They provided a copy of an invoice for a 3-metre length of 600 mm root barrier.
The respondents engaged contractors to install a root barrier in July 2020. The contractors dug a trench and installed root barrier material. Photographs in Exhibit C show the trench is more than 3 metres long. It is not clear if the respondents 3-m length of root barrier was cut to provide a longer (but shallower) length, or if more material was purchased. The respondents submitted that the contractors filled the trench with concrete. The applicants filed photographs showing the respondents' trench was less than 500 mm deep. The respondents submitted that the applicants' photographs were taken before the trench was completed. The applicants filed photographs showing some of the root barrier material was cut when contractors subsequently installed new fence posts. The respondents submitted that the trench was already filled with concrete, and fence posts were set in concrete, so any minor damage to the root barrier material should not affect the overall integrity of their efforts to contain bamboo roots.
I accept that the respondents have taken reasonable effort to contain the bamboo on their property. Should it prove ineffective, and damage results from the bamboo's spread and growth in future, the applicants would be able to file a second application, as that would be a change in circumstances (see Hinde v Anderson [2009] NSWLEC 1148).
The respondents have replaced or repaired damaged sections of fence at their expense. Their claim for the applicants to contribute to the cost of erecting the original fence and the cost of the recent fence rectification work is not one I would consider. The fence is on the common boundary. Unless there was some emergency requiring urgent fencing work, which there was not, the time for negotiating apportionment of fencing costs was prior to the works being done. The respondents took matters into their own hands, organising and paying for the fence. Despite their argument to the contrary, this does not give them unilateral control over future actions to the fence.
The respondents submitted that they will maintain the bamboo as required.

Other matters

The applicants raised issues arising from the bamboo's height and parts that overhang their property. Bamboo leaves and debris fall onto their property; parts of their garden are shaded. This makes it difficult for them to grow plants in this area, and mould grows here. These outcomes might be a nuisance, but they are not damage to property. If damage might result from debris or mould growth, this could be avoided through routine property maintenance, as per the principles in Barker v Kyriakides [2007] NSWLEC 292 and Hendry v Olsson [2010] NSWLEC 1302.
In their filed material and their submissions, both parties included opinions and assertions that are not relevant to this decision, including historic interactions between the parties and the opinions of other neighbours. The respondents, in particular, repeatedly made negative personal insinuations about their neighbours that were irrelevant and unhelpful. As they are irrelevant, I have not addressed them above.

Conclusions

The bamboo on Ms Sleeman's and Mr Sleeman's property caused some damage to the common boundary fence. Minor though it was, it was sufficient to enliven the Court's jurisdiction to make orders in this matter. Ms Woods and Mr Little sought orders for repairing the fence, installing a root barrier, and maintaining the bamboo to control its height and clearance to the boundary fence. The Sleemans have installed a root barrier and repaired the fence. There is nothing to demonstrate that their root barrier is inadequate for its purpose.
The bamboo's height does not cause damage. Bamboo may damage the fence in future if it grows or leans against the fence. However the respondents have recently paid for this fence to be repaired, so it is in their interest to maintain the bamboo such that it causes no further damage to the fence, as they have undertaken to do. Therefore there should be no need for Court orders. Should circumstances change, and the bamboo causes, or becomes likely in the near future to cause, damage to the applicants' property, they may make a new application to the Court.
Considering this application's background, it seems to me that the applicants acted reasonably in applying to the Court for orders. Other options for resolving their issues either proved unsuccessful or appeared to have little hope of leading to a successful outcome. The respondents' negative attitude towards the applicants was displayed during the hearing, and I assume has been apparent to the applicants throughout this dispute. Only after the respondents received the application did they take the steps that have avoided the need for the Court to make orders.
There is no other basis for making any orders in this matter.

Orders

For the reasons given above, the Court orders: 1. The application is refused. 2. The exhibits are returned, except for A and B.

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: 27 October 2020

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (1)

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Cited By (2)