Land and Environment Court New South Wales

• Medium Neutral Citation: Howe & Anor v Jinks & Anor [2012] NSWLEC 1142
• Hearing dates: 10 May 2012
• Decision date: 10 May 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application to remove the bamboo under Part 2 of the Act is dismissed.

(2)The application to remove the bamboo under Part 2A of the Act is dismissed.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; obstruction of light; obstruction of views; bamboo; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Freeman v Dillon [2012] NSWLEC 1057; Hinde v Anderson & anor [2009] NSWLEC 1148; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Marilyn Howe and Walter Howe (Applicants); Matthew Jinks and Shiona Frame (Respondents)
• Representation: Marilyn Howe and Walter Howe (Applicants in person); Matthew Jinks (Respondent in person)
• File Number(s): 20061 of 2012

Judgment

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

1 ACTING COMMISSIONER: Mr and Mrs Howe are concerned about the consequences of a neighbouring planting of bamboo near the common boundary. In particular, they are concerned that as the bamboo grows it will damage the boundary fence and pipes on their property, and that it will obstruct both sunlight to, and views from, their dwelling. They make this application under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 Mr Jinks has only recently planted the bamboo on his property and does not wish to remove it.

3 I must determine if the bamboo is likely to cause damage to the applicants' property and, if so, what orders as described by s 9 of the Act would be appropriate. I must also determine if the bamboo is causing a severe obstruction of sunlight or views.

Part 2 - Damage

4 The hearing took place on site. Mrs Howe pointed out the bamboo of concern, which is on the lower section, or front half, of Mr Jinks' property. Bamboo planted by Mr Jinks in the elevated part of his property further from the street frontage, to the rear of the dwellings, is not the subject of Mrs and Mr Howe's application.

5 The bamboo was planted in January of this year in a row approximately 20 to 30 cm inside Mr Jinks' property and parallel with the common boundary. It is a clumping variety of bamboo. There is no root barrier along the boundary.

6 Mrs Howe contends that the upper part of the bamboo is likely to damage the fence in the near future as the bamboo grows and its canes hit against the metal fence along the boundary. She also contends that the parts below ground will spread and push against the strip of wood along the bottom of the fence, displacing the fence, and also possibly causing damage to pipes and a path on her property. She further submits that the bamboo is close to Mr Jinks' external instantaneous gas heater and that this is a fire risk as the foliage will ignite easily with the high temperatures of the heater.

Does the Court have Jurisdiction?

7 Under s 10(2)(a) of the Act, concerning damage, the Court "must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property." Mr and Mrs Howe's claim concerns future damage. The Court considered the meaning of "in the near future" in Yang v Scerri [2007] NSWLEC 592 and at [14] determined that, ordinarily, this would be a period of 12 months. I see no special circumstances here that would entreat a different interpretation.

8 While I accept Mrs Howe's submission that the bamboo will grow over time, I cannot see any way in which the bamboo is likely to damage her property within 12 months. I accept that she may be concerned about the risk of damage but this concern is not based on any possible outcome in the near future. Even with optimal growing conditions the bamboo will not grow sufficiently within that timeframe to damage the fence above or below ground. With regard to damage to pipes, no evidence has been presented that roots have damaged pipes or that there is a greater than normal risk of this occurring here.

9 Turning to the risk of fire, in particular the risk of bamboo next to Mr Jinks' heater igniting, the court does not have jurisdiction over fire. Fakes C deliberated on this issue in Freeman v Dillon [2012] NSWLEC 1057 and at [86] determined that "a tree in itself does not start a fire..." It follows that damage caused by a fire would not be damage caused by the bamboo. Therefore a risk of damage by fire, if it actually exists here, does not give the Court jurisdiction over the bamboo.

10 As a consequence of the foregoing, the application to remove the hedge under Part 2 of the Act is dismissed.

Part 2A - sunlight and views

11 Mrs Howe submits that as the bamboo grows it will block sunlight to, and views from, windows of her dwelling. At the hearing she took us to the first room where she contends this will happen. She agreed there is no obstruction of views or sunlight there at present. I explained that the Court cannot make orders based on an obstruction of views or sunlight that does not currently exist. Specifically, s 14E(2) of the Act states that:

The Court must not make an order under this Part unless it is satisfied that:

(a)  the trees concerned

(i)  are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or

(ii)  are severely obstructing a view from a dwelling situated on the applicant's land.

12 Mrs Howe concedes that the bamboo does not obstruct sunlight or views at present and did not wish to press this part of the application any further.

Conclusions

13 The Court has no jurisdiction over the bamboo under either Part 2 or Part 2A of the Act.

14 If circumstances change, the applicant may make a new application. This is considered in Hinde v Anderson & anor [2009] NSWLEC 1148.

Orders

15 The orders of the court are:

(1) The application to remove the trees under Part 2 of the Act is dismissed.

(2) The application to remove the trees under Part 2A of the Act is dismissed.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 31 May 2012