Land and Environment Court New South Wales

• Medium Neutral Citation: Kilpatrick v Youlten [2014] NSWLEC 1050
• Hearing dates: 18 March 2014
• Decision date: 18 March 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is upheld in part.

(2)Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing.

(3)On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting.

(4)Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2).

(5)The works in (2) are to be completed within 90 days of the date of these orders.

(6)The applicant and the respondent are each to pay 50% of the cost of the works.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; hedges; obstruction of sunlight; bamboo; dividing fence; orders for repairs; costs shared.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; Hinde v Anderson & anor [2009] NSWLEC 1148; Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: APPLICANT; Timothy Kilpatrick; RESPONDENT; Trent Youlten
• File Number(s): 21034 of 2013

Judgment

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

The application

1 Mr Kilpatrick (the applicant) has occupied his Oyster Bay property since 2000. Since 2008 three clumps of bamboo have grown on the neighbouring property to the north. He says the bamboo causes several problems. Firstly, it obstructs sunlight to his dwelling, causing the sunroom to be cold and dark throughout winter. Secondly, he says the bamboo shades outdoor paved areas, causing mould and moss to grow and thus creating a slip hazard. Thirdly, he says the bamboo is growing against the colourbond fence on the common boundary, pushing it over into his property and creating bulges in the fence.

2 Mr Kilpatrick has applied to the Court seeking orders under both Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 for the bamboo to be pruned to, and maintained at, a height one metre above the top of the colourbond fence; for a root barrier to be installed; and for the fence to be repaired including replacement of several panels.

3 Mr Youlten (the respondent) owns the property to the north. He planted the bamboo for privacy. He says it provides visual screening between the properties, helps to prevent smoke drifting from the applicant's property and dampens traffic noise.

4 In the time elapsed between the application being made and the onsite hearing, Mr Youlten has pruned the bamboo so that section T3, a long section to the northeast of Mr Kilpatrick's dwelling, is mostly around 6 metres high, with some shoots up to 7.9 metres. The tallest parts of clumps T1 & T2, to the north of Mr Kilpatrick's dwelling, are 4.3 metres in height.

5 Bamboo is classed as a tree under the Act. If the jurisdictional tests at s 14E(2) are satisfied the Court can make orders to remedy, restrain or prevent an obstruction of sunlight under part 2A of the Act. Similarly, if the jurisdictional tests at s 10(2) are satisfied, the Court can make orders to remedy, restrain or prevent damage to property or to prevent injury to a person as a consequence of the tree under Part 2.

6 Both Part 2 and Part 2A also require that the applicant has made a reasonable effort to reach agreement with the respondent. Although Mr Youlten denies receiving most of the correspondence included in Exhibit F, I am satisfied that the Applicant has made some effort.

Part 2A - Obstruction of sunlight

7 The bamboo is planted so as to form a hedge and is greater than 2.5 metres tall, thus satisfying the jurisdictional tests at s 14A(1). The applicant says that, before it was pruned, the bamboo blocked sunlight to his north-facing sunroom windows through winter, from April to October. Based on the onsite view, I have no doubt that, for much of that time, there was a severe obstruction of sunlight. However at the time of the hearing, with the reduced height of the bamboo, it is not clear that such an obstruction exists. As discussed in Tooth v McCombie [2011] NSWLEC 1004, the obstruction must be severe at the time of the hearing, not at the time of the application. The respondent provided shadow diagrams for the winter solstice, hourly throughout the day, based on a height for the bamboo of 4 metres. He had prepared these diagrams himself using a website and I rely on them as a rough guide only. They show that at a height of 4 metres the bamboo would obstruct only the bottom part of the floor-to-ceiling glass doors across the northern wall of Mr Kilpatrick's sunroom. I also note that other structures, including trees, eaves and Mr Kilpatrick's large birdcage, contribute partially to an obstruction of sections of these windows. I am not satisfied that there is a severe obstruction of sunlight to these windows caused by the bamboo, and therefore cannot make orders under Part 2A. I note that bamboo is a fast-growing plant and that a severe sunlight obstruction may occur again in future. Should that happen, Mr Kilpatrick may make a new application to the Court.

Part 2 - Injury

8 If the bamboo caused mould, slime or moss to grow on the outdoor paved area of Mr Kilpatrick's property, and should that mould, slime or moss create a slip hazard, the risk of injury is a result of the presence of mould, slime or moss and is not directly caused by the tree. However, even if I accept that the risk is caused by the tree, the principle stated in Barker v Kyriakides [2007] NSWLEC 292, further extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, would apply here. That is, a reasonable amount of maintenance is expected by those living in urban environments with trees and this "...should extend to the cleaning of such surfaces as paving and paths and the like" (Hendry at [14]). Therefore, this part of the application is dismissed.

Part 2 - Damage

9 The fence is a 1.8-metre high colourbond fence along the common boundary. It sits atop land supported by a low retaining wall that is a short distance within Mr Kilpatrick's property, and that is perhaps from 200 to 600 mm high. There is disagreement between the parties regarding changes in ground levels on either side of the fence during the last six years. Each party claims that changes within the other's property have led to displacement of the fence.

10 Mr Kilpatrick lodged a complaint with Sutherland Shire Council in 2008 regarding the state of the fence, saying that works on Mr Youlten's property were causing the fence to be displaced. Photographs taken by Mr Kilpatrick at that time show that there was some minor displacement, though its cause in unclear. Now, along some sections of the fence, the top rail is displaced southward (into Mr Kilpatrick's property) by approximately 200 mm. In several places, lower on the fence, there are bulges in the colourbond panels. Observations during the onsite view revealed that these are located where large clumps of bamboo grow against the fence and, near their base, are pushing against the fence. Based on these observations I accept that the bamboo has at least contributed to damage of the fence, and is therefore a cause of damage. The test at s 10(2)(a) is satisfied and I can make orders for the damage to be remedied. According to Mr Kilpatrick, remedy of the damage requires straightening of the fence and replacement of four panels.

11 With regard to apportioning the costs of this work I note that, according to Mr Kilpatrick's own submissions, the fence was partially damaged in 2008, prior to the presence of bamboo. It is unclear what had caused such damage - each party asserts that actions on the other's property had caused the damage. Therefore the costs of repair shall be shared equally between the parties. The bamboo is growing vigorously, adjacent to the dividing fence. Should it cause further damage in future, this would be a change in the situation and, as described in Hinde v Anderson & anor [2009] NSWLEC 1148, Mr Kilpatrick could make a new application to the Court.

Root barrier

12 Mr Kilpatrick wants a root barrier installed along the boundary to prevent the bamboo spreading into his property. Mr Youlten says there is a black plastic barrier in place already. Mr Kilpatrick pointed out one bamboo shoot on his property at the hearing. The lack of shoots along almost the entire boundary, bar that one shoot, suggests that Mr Youlten's claim is correct and that the barrier is largely doing its job. Given the amount of work that would be involved in installing a root barrier here, I see no reason to order such when only one shoot has sprouted on Mr Kilpatrick's property.

Orders

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

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing.

(3) On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting.

(4) Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2).

(5) The works in (2) are to be completed within 90 days of the date of these orders.

(6) The applicant and the respondent are each to pay 50% of the cost of the works.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 March 2014