Land and Environment Court New South Wales Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509 Hearing dates: 11 May 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [38] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – bamboo – madeira vine – whether the entire fence needs replacing – whether bamboo needs removing to prevent further damage – removal of madeira vine and bamboo – replacement of boundary fence Legislation Cited: Dividing Fences Act 1991, s 13A Noxious Weeds Act 1993 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2019, cl 4 Texts Cited: Parramatta City Council, 'Weed Control Class 4 Management Plan', (2006) Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', (2016) Category: Principal judgment Parties: The Owners – Strata Plan 46498 (Applicant) Kalliopi Evagelakos (Respondent) Representation: Counsel T Bacon (Solicitor) (Applicant) T Kallianiotis (Solicitor) (Respondent) Solicitors Strata Title Lawyers (Applicant) A Plus Legal (Respondent) File Number(s): 2020/361816 Publication restriction: No Judgment Background to the application 1. COMMISSIONER: A wooden paling fence extends along the common boundary shared by The Owners – Strata Plan 46498 ('the applicant') and Kalliopi Evagelakos ('the respondent'). The fence is serviceable in places, but not in others, where it is affected by age, weather, moisture and vegetation. The fence extends along the entirety of Ms Evagelakos' boundary. The fence extends along some, but not all, of the applicant's north-eastern boundary, where it forms the rear boundary of several units, enclosing their courtyard gardens. Some of these gardens are relatively clear of vegetation, some have trees and shrubs. For a significant length of this fence, Ms Evagelakos has tall rhizomatous (spreading) bamboo (Phyllostachys sp.) (the bamboo') growing on her side of the fence. It was growing here when she purchased her property, and she appreciates the privacy it provides. It forms a tall screen between her garden and the units on the applicant's property. 2. Madeira vine (Anredera cordifolia) ('the madeira vine') has grown on and amongst other vegetation, including Ms Evagelakos' bamboo. Some of the vine has been killed – dead foliage remains visible in the bamboo and in other trees and shrubs – while some live madeira vine remains. 3. The applicant has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for: the respondent to remove at her expense the bamboo and madeira vine; the respondent to instal a root barrier along the boundary to prevent further damage; the fence to be replaced along the entirety of the common boundary, with costs shared evenly by the parties; and, costs. 4. The applicant seeks these orders on the basis that the bamboo and madeira vine have damaged parts of the fence. The applicant is of the view that the vine has grown from the respondent's property. Parts of the fence that are not damaged by the bamboo are otherwise dilapidated, or do not meet the requirements of a proper dividing fence. To the applicant, it would be prudent to replace the fence in its entirety. 5. Some of the grounds for the application are not disputed by the respondent. For instance, the Ms Evagelakos does not dispute that her bamboo has damaged parts of the fence, nor that other parts of the fence are dilapidated. The respondent does not dispute that the madeira vine must be removed. The respondent does dispute, however, that the bamboo must be removed. Initially, the respondent also disputed that the fence needs replacing along the entire boundary. She had a quote for replacing sections of the fence, repairing other sections, and keeping some sections as they are. Her position changed during the hearing as she became more aware of the fence's condition, and of its failure to comply with current fence height requirements, so that she ultimately agreed that the entire boundary fence should be replaced. However Ms Evagelakos wanted an opportunity to obtain quotes for this work, whereas the applicant asked the Court to rely on the quote included in the application, which had been sent to the respondent along with an earlier notice under the Dividing Fences Act 1991 ('the Dividing Fences Act'). The hearing 1. The parties each had legal representation: Mr Bacon for the applicant and Ms Kallianiotis for the respondent. The applicant filed a report by arborist Glenn Bird of Birds Tree Consultancy; the respondents filed a report by arborist Mark Kokot of Raintree Consulting Arborists. Mr Bird gave evidence at the hearing. 2. Following observations of the fence, vegetation and condition of the properties at the onsite hearing, the parties asked for an opportunity to negotiate further, to see if they might reach consent orders, on the basis that they agreed on most matters. The Court's aims include resolving matters quickly and finally, and minimising the potential for ongoing disputes. This can be achieved in some cases by the parties agreeing on an outcome. Despite being provided with ample opportunity, the parties did not reach agreement on all matters. Framework for this decision 1. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the trees' owner (s 10(1)(a) of the Trees Act). 2. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person. Then, before making any orders as outlined at s 9, the Court must consider the matters at s 12 of the Trees Act. 3. According to cl 4 of the Trees (Disputes Between Neighbours) Regulation 2019, bamboo and vines are prescribed as trees for the purposes of the Trees Act. The applicant made reasonable effort 1. The Owners – Strata Plan 46498 have contacted Ms Evagelakos requesting removal of the vine and bamboo. Individual property owners within the applicant's property have also contacted Ms Evagelakos, pointing out damage to their fences or other property, and asking that something be done. Ms Evagelakos was invited to attend mediation, but declined. I am satisfied that the applicant has made reasonable effort to reach some agreement with the respondent. Bamboo and madeira vine have damaged the applicant's property 1. It was clear from observations made at the onsite hearing that both the bamboo and the madeira vine have damaged the fence. This is not disputed. There may also be other contributing factors to the fence's condition, including its age and construction quality, but the jurisdictional test at s 10(2)(a) of the Trees Act is satisfied. Therefore, the Court may make orders to remedy, restrain or prevent such damage, but not before considering matters at s 12. Consideration of relevant matters at s 12 1. I have considered all matters at s 12 of the Trees Act and discuss the relevant ones below. Location of the trees 1. The parties dispute the origin of the madeira vine relative to the boundary, as well as a small clump of bamboo. This is relevant at s 12(a): "the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises". 2. The applicant says the bamboo grows on Ms Evagelakos' property, with some spreading into courtyards on the applicant's property. Ms Evagelakos agrees that the bamboo predominantly grows on her property, but identified one clump with different foliage towards the western end of the bamboo planting. A smaller clump of this bamboo grows in the adjacent courtyard on the applicant's property. The respondent submitted that this clump began on the applicant's property and spread to hers. Mr Kokot suggested the same in his report. I find this unlikely. The size of the bamboo on the respondent's land is significantly larger than that on the applicant's land. I find that all the bamboo here has originated on the respondent's land. 3. The applicant submits that the madeira vine originated on the respondent's land. The respondent disputes this. Ms Evagelakos has made significant effort to clear between her bamboo plants, removing any madeira vine that grew from her land. Mr Kokot expressed an opinion that the vine originated on the applicant's land. Mr Bird gave evidence that removing the vine at ground level would not necessarily prevent it growing, as madeira vine can grow successfully from its above-ground parts (aerial tubers, stems and leaves) without requiring roots in the ground. 4. Madeira vine can now be seen above ground in plants on the applicant's property: in shrubs and trees growing in courtyards. Remnants of the vine are still identifiable in the respondent's bamboo also, but not to the extent that it can be seen above the applicant's land. No stems of the vine could be seen entering the ground on either property. Considering the dense nature of bamboo on the respondent's land, and the less-vegetated nature of most courtyards on the applicant's land, I find it most likely that the madeira vine originated on the respondent's land. Bamboo provided an ideal aerial framework facilitating the vine's spread. 5. The jurisdiction of the Trees Act is limited to certain trees at s 4: 4 Act applies to trees on certain land (1) … (2) … (3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. (4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred. 1. The madeira vine is no longer situated principally on the respondent's land. However, prior to the respondent's efforts to remove the vine, after it had damaged the applicant's property, it was, as far as I can understand, situated principally on the respondent's land. Therefore, and despite the current situation, I find at s 4(4) of the Trees Act that I can make orders for the madeira vine. Council consent is not required to remove the trees 1. The properties are within the City of Parramatta Council ('Council') area. Council would not require consent for either party to remove bamboo or madeira vine within their property. In fact, the applicant filed Council documents titled "Weed Control Class 4 Management Plan" relating to both rhizomatous bamboo and madeira vine. I note here that both of the filed management plans had periods starting in 2006 with a 'completion date' in 2011. 2. The management plan for rhizomatous bamboo required bamboo to be prevented from growing within 3 metres of a property boundary unless an effective root barrier was installed. Ms Evagelakos argued that she has installed a root barrier along her boundary and pointed out to the Court sections of the barrier. The applicant argued that the root barrier extended only part-way along the boundary, pointing out to the Court areas where no barrier could be seen. The applicant also argued that the barrier was not effective, as even where the barrier could be seen, bamboo has spread into the applicant's property, in some places several metres from the boundary. I accept that the respondent's barrier is not installed along the entire boundary adjacent to her bamboo, nor is it entirely effective. 3. The applicant is of the view that the bamboo is inappropriate and that its planting and maintenance do not meet the guidelines set out in Council's management plan. 4. The management plan for madeira vine required the vine to be continually prevented from climbing or spreading within 1 metre of a boundary. The plan provided measures for its removal and control. 5. The management plans identified both the madeira vine and rhizomatous bamboo as noxious weeds declared under s 7 of the Noxious Weeds Act 1993. Impacts of pruning 1. Pruning the bamboo would not prevent it causing damage, so impacts of pruning need not be considered. Various benefits of the bamboo 1. The respondent argued that bamboo provides screening along the boundary, giving her privacy from her nearby neighbours. The bamboo contributes to the amenity and landscape value of her property. It provides some shading and cooling. It does not provide other significant environmental benefits and has no cultural or social value. Other factors contributing to damage 1. The respondent argued that the nature of some paving within courtyards on the applicant's land contributed to deterioration in the fence's condition by directing water to drain to the fence. Evidence supporting this was scant, but even if I accept her submission, I find that bamboo and madeira vine have been the principal agents causing damage to the boundary fence. 2. The respondent submitted that vegetation in the applicant's property has contributed to fence damage in places. Any such occurrences observed onsite were minor, such that they do not influence the outcome of this decision. Balance of these s 12 matters 1. The parties do not dispute that the madeira vine should be removed but dispute its origin and who is now responsible for its removal. I find it originated on the respondent's land, where it was principally situated when it caused damage to the boundary fence and before much of it was removed from the respondent's land. The Court may make orders for its removal. Even though the respondent will be ordered to pay for its removal, to some extent, each party will need to make effort to successfully eradicate this vine. 2. Having weighed the discretionary matters discussed above, I find the reasons for removing the bamboo outweigh its benefits. Even if it is cleared sufficiently to allow the fence's replacement, leaving any bamboo growing will result in it spreading once more to the boundary and again damaging the fence. The Court should make orders to prevent such damage. Nature of the orders 1. Trees that are the subject of this application have damaged the boundary fence. The parties agree that the entire fence along their common boundary needs replacing. As enabled by s 13A of the Dividing Fences Act, the Court can order this. The applicant asked the Court to rely on a quote they filed from Jim's Fencing. That quote stated that it was only valid for 30 days, so it was no longer valid at the time of the hearing. After this final hearing was completed, the applicant took it upon itself to send to the Court an updated version of the quote. Considering the extent of the works, the respondent will be provided the opportunity to obtain a quote for the fence's replacement. The applicant may also obtain a further quote should they wish, or rely on the quote they already have. 2. The quotes must clearly state what is required regarding vegetation removal, and whether the parties are required to remove any vegetation or if it is included in the quote. 3. The fencing quotes must be for replacement of the common boundary fence only. A survey plan filed by the applicant shows the extent of the common boundary. Although it is the respondent's entire side boundary, it does not extend to either the front of the applicant's property or their rear boundary. Should the applicant wish to arrange additional works at the same time, that is a matter for them. 4. Parts of fence are damaged by plants, but the parties agree that the entire fence needs replacing. The cost of the fencing works ordered below will be shared equally between the parties. 5. The respondent will pay for the removal of all bamboo and all madeira vine from both properties. Removal of bamboo and madeira vine must be done by a suitably qualified bush regeneration contractor. It is likely that there will be some future regrowth of madeira vine. Once the orders below are completed, each party will be responsible for removing any future regrowth on their property as they see fit. 6. The applicant sought an order for installing a root barrier along the boundary but, because the bamboo is being removed, a barrier is not required. 7. The applicant sought an order for costs. Commissioners of the Court are not empowered to order costs. If the applicant wishes to pursue a costs order, they must file a Notice of Motion to be heard by a Judge or the Registrar of the Court. Orders 1. Based on the foregoing, the Court orders: 1. The application is upheld. 2. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified bush regeneration contractor, with all appropriate insurance, to remove all bamboo and madeira vine growing in both the respondent's property and the applicant's property within 8 metres of the boundary. Any parts of the plants that cannot physically be removed are to be killed to prevent regrowth. 3. Within 28 days of the date of these orders the applicant and the respondent are each to obtain and provide to the other party a quote from a fencing contractor for: 1. removing the fence along their common boundary (as shown on the survey plan included in Exhibit B), 2. clearing vegetation that would obstruct a new fence along the boundary, and 3. constructing a new fence along the common boundary as follows: 1. 1.8 m tall treated pine timber fence 2. Steel posts at least 600 mm into the ground 3. Posts secured with concrete in ground. The quotes are to specify which other vegetation, if any, must be removed by property owners prior to the works. The quotes are to be made out to both the applicant and the respondent, with each party to pay 50% of the cost. 1. Within 35 days of the date of these orders the parties are to select the cheapest of the two quotes from Order (3), unless they otherwise agree on the other quote. The parties are to engage the selected contractor under a fencing agreement, in which the applicants agree to pay 50% of the cost of the works and the respondents agree to pay 50% of the cost of the works, to carry out the fencing works in Order (3) within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement. 2. Prior to the fencing works, the applicant and respondent are to undertake any other vegetation removal, as specified in the selected quote, that is required to allow the fencing works to proceed. 3. The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day. ………………………………. D Galwey Acting Commissioner of the Court ********** 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: 01 September 2021