Land and Environment Court New South Wales

• Medium Neutral Citation: Antyppas v McKinnon [2011] NSWLEC 1191
• Hearing dates: 6 June 2011
• Decision date: 04 July 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] - damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Wendy and Dennis Antyppas (Applicants); Grant McKinnon (Respondent)
• Representation: Solicitors; Mr and Mrs Antypass (Applicants in person); Mr Donnellan (Respondent)
• File Number(s): 20193 of 2011

Judgment

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr and Mrs Antyppas, the owners of a property in Avignon Street, Bateau Bay against Mr McKinnon the owner of an adjoining property to the west.

2 The applicants are seeking orders for the removal and replacement of their side fence, the removal of a bamboo hedge growing on the adjoining property boundary, and the reimbursement of legal and Court costs.

3 The applicants contend that the bamboo hedge has caused their timber fence to rot and subsequently lean toward their house, and that bamboo runners have damaged their concrete path adjacent to the fence.

4 Mrs Antyppas' sister assisted Mr and Mrs Antyppas at the onsite hearing.

5 Mr McKinnon was represented by his solicitor, Mr Donnellan.

6 I informed the parties that Commissioners are not authorized to make rulings on costs.

7 The respondent's hedge is a dense thicket of a single species of bamboo (Phyllostachys spp) growing along the eastern side boundary of his property.

8 For the purposes of the definition of tree in s 3 (1) of the Act, bamboo and any plant that is a vine are prescribed.

9 The bamboo forms a screen of about 10 m in length, 3.5 m in height and about 400 mm in width. It is in essence a dense growth of canes that are on average 35 mm in diameter.

10 I turn first to the applicants' claim that the bamboo has damaged their concrete path. They contend that cracks in the path are caused by sucker growth from the respondent's bamboo hedge.

11 I observed that the concrete path extends the rear to the front of the applicants' house and that this path is quite old and in relatively poor condition. There are numerous cracks and voids in the path, some containing weed growth and in one instance an emerging bamboo shoot. The applicants' evidence includes photographs showing bamboo shoots emerging from cracks in the concrete path.

12 I observed that there are similar cracks in other areas of concrete pavement throughout the applicant's property and I am not persuaded that these cracks can in any way be attributed to the growth of bamboo.

13 On the evidence before me I am not satisfied that the respondent's tree has caused, is causing or is likely in the near future to cause damage to the applicants' path and therefore as none of the tests under s 10 (2) of the Act is met the Court has no jurisdiction to make orders and this element of the application is dismissed.

14 I turn now to consider the applicants' claim that the bamboo has caused the timber dividing fence to fail.

15 The parties agree that the timber fence is about 15 years old.

16 I inspected the fence from both sides and observed that the posts supporting the leaning and bowed panels adjacent to the bamboo had rotted away.

17 The vertical palings in each of the panels adjacent to the bamboo appeared relatively solid except toward their base where there was some evidence of progressive rot.

18 I inspected sections of the fence from the respondent's land toward the front of the property where there was no bamboo growing. The respondent pointed to recently installed timber supports to that part of the fence and stated that he had recently installed the supports as the fence was starting to fail due to rot in the support posts. I noted the ground at this location was as wet as that adjacent to the bamboo.

19 Returning to the applicants' property I noted that their concrete path has a distinct cross fall away from the building toward the base of the fence so that any water directed to the path would flow to the base of the fence along the full length of the path.

20 The respondent's land is situated upslope of the applicants' land. Run-off and seepage from more elevated properties to the rear northeast of the respondent's land therefore contributes to a flow traversing the respondent's rear side and front gardens and thence toward the applicants' property along the common boundary defined by the timber fence.

21 The applicants contend that the bamboo blocks the flow of water and therefore moisture is concentrated at the base of the fence causing the fence to fail.

22 The respondent acknowledges the natural flow of run off and seepage from higher land behind his property and thence toward the applicants land. He contends that the cross-fall on the applicant's concrete path also contributes water to the base of the fence. He contends that water falls directly onto to the path from the corrugated sheeting roof over the applicant's side porch since that section of roof has no guttering.

23 On the evidence before me I conclude that the timber support posts of the paling fence have rotted to the point of failure as a result of a consistent regime of moisture arising from an existing pattern of natural and introduced water flows from surrounding properties including the applicants' land. I am not persuaded that the bamboo hedge is in any way contributing to the failure of the fence.

24 As a result of the foregoing, none of the tests under s10 (2) (a) of the Act are met the Court has no jurisdiction to make orders and the application, in its entirety is dismissed.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 14 July 2011