Land and Environment Court New South Wales

• Medium Neutral Citation: Lazenby & ors v Bergquist [2014] NSWLEC 1147
• Hearing dates: 23 July 2014
• Decision date: 23 July 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); hedges; views; sunlight; bamboo; damage; no evidence of damage; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2014
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Tooth v McCombie [2011] NSWLEC 1004; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANTS; Keith Lazenby (first applicant); Brian Lazenby (second applicant); Barbara Cook (third applicant); RESPONDENTS; Mark Bergquist (first respondent); Constance Bergquist (second respondent)
• Representation: APPLICANTS; Brian Lazenby (Litigant in person); Barbara Cook (Litigant in person); RESPONDENTS; No appearance
• File Number(s): 20213 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application

1 Three siblings, Messrs. Lazenby and Ms Cook ("the applicants"), own a dwelling in a residential Murwillumbah street. The second applicant lives at the dwelling. Until recently a tall clump of bamboo grew on the neighbouring property, owned by the Bergquists ("the respondents"). The applicants became concerned that the bamboo was blocking sunlight to, and views from, their dwelling. They were also concerned that roots of the bamboo may interfere with and damage their sewer pipes. They originally applied to the Court pursuant to Part 2A of the Trees (Disputes Between Neighbours) Act 2006 seeking orders from the bamboo's removal. Part 2A of the Act gives the Court jurisdiction to deal with the obstruction of sunlight and views caused by neighbouring hedges.

2 Prior to the matter being heard, the respondents cut the bamboo almost to ground level. Any obstruction of sunlight or views must be assessed at the time of the hearing (see Tooth v McCombie [2011] NSWLEC 1004), so this prevented the applicants pressing this part of their application. As their concerns about the possibility of roots damaging their sewer remained, they amended their application seeking orders pursuant to Part 2 of the Act, on the grounds that roots of the neighbouring tree (bamboo) are likely to cause damage in future. They want the respondents to also remove the underground parts of the bamboo. The applicants have limited access to legal advice.

3 The respondents' position regarding this issue is unknown. They did not file any material with the Court prior to the hearing. This morning, Mrs Bergquist was busy in her role at a childcare centre that operates on their property. At the prescribed time for the hearing she said her husband was on his way but was stuck in traffic and would be about ten minutes. It was 10:30 in the morning in Murwillumbah. The hearing began fifteen minutes later with no appearance from the respondents.

The tree

4 The applicants pointed out the remains of the bamboo. It has been cut to a little above ground level, leaving a large clump of cut stems within the respondents' property, adjacent to the common boundary. The cut stump of one bamboo stem is within the applicants' property.

5 The definition of "tree" in s 3(1) of the Act includes bamboo according to the Trees (Disputes Between Neighbours) Regulation 2014. The tree is situated principally on the respondents' land. Therefore, as set out at s 4, the Act applies to the bamboo.

Damage

6 The applicants say that, as far as they know, bamboo roots have not yet caused damage but they are concerned that the bamboo will continue to grow and its roots will damage their sewer pipes.

7 The applicants say that if the sewer pipes need repair in future they will struggle to afford the cost of any works.

8 The sewer pipe is, as explained by the applicants, located approximately five metres from the boundary and from the bamboo. Apart from the one cut stem on their property next to the common boundary, there is no evidence that any other bamboo shoots have arisen on their land. The applicants have not undertaken any digging or other means of establishing if bamboo roots are near their sewer pipe. They suspect that the sewer pipe is earthenware but have not done any investigation to demonstrate this.

9 From the evidence before me, and having viewed the situation, I cannot be satisfied, as required by s 10(2)(a), that bamboo roots are "likely in the near future to cause damage to the applicant's property." In this case, as in many others within this jurisdiction since Yang v Scerri [2007] NSWLEC 592, I regard 12 months as an appropriate timeframe for the near future.

10 My findings expressed above arise from the limited available evidence and the specified timeframe. I do not intend to imply an opinion that root damage will not occur beyond that timeframe.

The applicants can make a new application should circumstances change

11 As a consequence of the above, the Court cannot make orders and this application will be dismissed. Should it become apparent to the applicants at some future time that roots from the neighbouring bamboo are damaging their property, they would be able to bring a new application to the Court. Such a change in circumstances is described in Hinde v Anderson & anor [2009] NSWLEC 1148.

12 By way of today's decision the respondents have been given notice of the applicants' concerns regarding bamboo roots causing damage in future.

Orders

13 Based on the foregoing, the orders of the court are:

(1) The application is dismissed.

D Galwey

Acting Commissioner of the Court

Decision last updated: 25 July 2014