Land and Environment Court New South Wales Medium Neutral Citation: Ankerholz-Potts v Cooper [2023] NSWLEC 1213 Hearing dates: 31 January 2023 Date of orders: 31 January 2023 Decision date: 31 January 2023 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [30]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees have caused, or are causing, damage to applicant's property; do s (12) considerations outweigh impact of damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7,8,9,10,12 Trees (Disputes between Neighbours) Regulation 2019, cl 4 Cases Cited: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Sonya Ankerholz-Potts (Applicant) Rebecca Cooper (Respondent) Representation: S Ankerholz-Potts (Self-represented)(Applicant) R Cooper (Self-represented) (Respondent) File Number(s): 2022/339185 Publication restriction: Nil Judgment This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication. Background 1. The applicant, Ms Sonya Ankerholz-Potts, shares a rear property boundary with the respondent, Ms Rebecca Cooper, in Warilla, in the Illawarra region. Both parties have occupied their properties for at least 20 years. The common boundary is oriented south-east to north-west, and the applicant also shares a common rear boundary with the respondent's north-western side neighbour. 2. Ms Cooper, a keen gardener, established dense plantings in garden beds on each boundary of her rear yard, which provide both privacy from neighbouring properties and considerable aesthetic amenity. The rear garden, adjacent to the common boundary, is dominated by Bambusa textilis Var. Gracilis (Slender Weavers Bamboo) (the bamboo), but also contains Golden Cane Palms, Bangalow Palms (together known as the palms), and other small trees. A Jacaranda tree, said to be self-sown, is growing in the garden's north-western corner, and most of its foliage overhangs the respondent's side boundary. 3. In 2018, the applicant, at her expense, replaced her rear timber fence with a Colorbond metal panel fence, along the boundary she shares with both rear neighbours. The respondent's bamboo, being long established, had developed into large clumps with culms (stems) reaching about 9 metres (m) tall. In spreading towards the boundary, the bamboo had exerted pressure on the fence, which was leaning towards the applicant's land. The tall culms also lean over the applicant's rear yard, and some had bent and broken in the wind and impacted the applicant's garage roof. 4. The applicant and her spouse requested that the respondent maintain the bamboo and other plants to prevent fence damage and contain the bamboo, without success. 5. Consequently, Ms Ankerholz-Potts made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage that trees have allegedly caused, are causing, or are likely to cause in the near future. The onsite hearing 1. The hearing was conducted onsite with both parties present. The trees in Ms Cooper's rear garden were inspected initially, after which the Court moved to Ms Ankerholz-Potts' rear yard to inspect alleged damage, and for the parties' submissions. 2. The applicant's (summarised) proposed orders are: 1. Removal of running bamboo, palms and Jacaranda tree along the fence. 2. Maintain (the) area to prevent more damage, and install a barrier to control the bamboo. 3. Remedial work to straighten the fence Jurisdictional requirements 1. With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. Bamboo is prescribed as a tree under cl 4 of the Trees (Disputes between Neighbours) Regulation 2019. 2. The applicant has satisfied the requirement under s 8(1)(a) of the Act, to serve notice to the respondent more than 21 days prior to the proceedings. Ms Ankerholz-Potts provided a Statutory Declaration, dated 16 December 2022, noting service of the application documents to the respondent, to Shellharbour Council and to the Heritage Council of NSW. 3. The applicant has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. The applicant and/or her spouse approached the respondent, seeking pruning of the bamboo and repair of the fence. Action was promised by a friend of the respondent, but nothing material transpired. The applicant sought mediation through a Community Justice Centre, but the respondent chose not to engage in mediation, and nor is she required to do so. 4. Dealings between the parties were difficult and protracted, as is not unusual in disputes over trees. The details of such negotiations are mainly irrelevant to the Court, other than those pertaining to the applicant's requirement to satisfy s 10(1)(a) of the Act. 5. Nonetheless, there are relevant elements deserving of mention in this case. The applicant was initially under the misapprehension and particularly concerned that the bamboo was a rhizomatous or 'running' bamboo, rather than a clumping variety. 6. Rhizomatous bamboo is prone to spread extensively and is hard, and often expensive, to control. The applicant initially approached Shellharbour Council without remedy, then the Illawarra Shoalhaven Joint Organisation on the basis that the bamboo may be a Biosecurity risk. The bamboo was similarly misidentified as a rhizomatous species Phyllostachys sp., in an arborist report, dated 13 December 2022, which was procured by the applicant from Robert de Jong of Arbor Express who claimed to be an AQF level 5 arborist. This report reinforced species identification misinformation and provided little benefit to the applicant. The report was largely a reproduced standard form document which did not even include 'Recommendations'. 7. The respondent appeared under the misapprehension that the growth of her bamboo was relatively static and that it lacked the ability to cause damage to surrounding objects. In her 'Response to Tree Dispute Application', dated 9 January 2023, the respondent included copies of invoices for the purchase of her bamboo, and statements from Mr Bramston of Bamboo South Coast, who sold her the bamboo, and from a Horticulturist from Greener Garden Works. 8. Both statements said this species grows to 80-100cm in diameter and has a "non-compressive non-destructive fibrous root system" which will not damage pipes and infrastructure. Mr Rogan, of Greener Garden Works, further claimed that "Due to its species, it is impossible for this bamboo type to spread across this (the respondent's) property or to neighbouring properties", regardless that it had been planted in proximity of the common boundary. 9. These statements are patently incorrect. If a small clump of bamboo progressively spreads outwards to become a dense continuous clump 100cm wide, it is likely to exert considerable pressure on objects it encounters, such as fences. The Court inspects many sites where this species is used, and, in a recent instance, a 13-year-old clump, growing with average soil and environmental conditions, was almost 2 m wide. This is not extraordinary. 10. Though Bambusa textilis Var. Gracilis is far less problematic than rhizomatous bamboo, it has considerable potential to cause damage, and conflict between neighbours. Where this species is planted close to boundaries that lack strong barriers to deflect its progress, it will readily spread under fences into neighbouring properties. 11. These incorrect, partisan statements have assisted neither party, and regretfully, likely deepened the dispute. 12. The next major test that is posed, by s 10(2) of the Act, states: (2) 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, or is likely to cause injury to any person. 1. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act. Damage caused by the bamboo 1. My site inspection, and photographs provided by the applicant, revealed exposed bamboo roots prising the common boundary fence towards the applicant's land, bamboo culms exerting pressure on the fence, and bamboo which broke and fell onto the applicant's land in the past. I am thus satisfied that the bamboo has caused, and is causing damage and therefore s 10(2)(a) of the Act is satisfied. 2. In Ms Cooper's response of 9 January 2023, and at the onsite hearing, the respondent did not dispute this damage, and proposed measures to remedy the situation, at her expense. 3. While damage sustained to date appears to be sufficiently minor as to not have significantly compromised the functional performance of the fence, I am also satisfied that without intervention the fence damage is likely to worsen in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. 4. While this damage is not especially significant, nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, indicates that even relatively minor damage engages the Court's jurisdiction. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) of the Act, but it can be relevant in determining what orders, if any, should be made. 5. I was not satisfied that the Jacaranda tree was causing damage. While it is a relatively poor specimen with the majority of its canopy overhanging the respondent's side neighbour's land, no orders shall be made for this tree. Section 12 – discretionary considerations 1. Satisfaction of s 10(2) of the Act requires the Court to consider relevant matters under s 12 of the Act before determining an application made under Pt 2 of the Act. Ssection 12(b3) of the Act considers the trees' contribution to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated. 2. The respondent noted the amenity provided by the bamboo, palms and other trees, especially the privacy afforded between the parties' dwellings, and their contribution to garden design and landscaping. These are reasonable and important considerations, and the damage can be remedied with little compromise of these attributes. 3. Therefore, orders will be made with respect to damage caused to the fence by the bamboo. Conclusion 1. I have inspected the trees and the site and reached the following conclusions. 1. The respondent's bamboo is currently causing damage to the common boundary fence, which, though relatively minor, is likely to worsen in the near future without intervention. Orders shall be made for fence repair, at the respondent's expense. 2. Restriction of the bamboo roots and culms within the respondent's property can be achieved through the installation and ongoing maintenance of a trench on the respondent's side of the common boundary, with little negative impact on the benefits, particularly privacy, afforded by the bamboo and other plantings within Ms Cooper's rear garden. Orders 1. The Orders of the Court are: 1. Within 60 days of the date of these orders, the respondent, at her expense, shall remove the first two panels of the common boundary fence, and remove all vegetation and roots within 300mm of the respondent's side of the common boundary to a depth of at least 250mm. The excavated trench so formed shall not be refilled with soil. 2. Immediately following this vegetation removal, the respondent, at her expense, shall re-establish the post on the boundary between the two fence panels to a depth of at least 900mm with ample concrete, and re-attach the two fence panels to this post, ensuring that the fence section is straight and vertical. 3. The applicant shall provide all reasonable access for the respondent, or her representative, to complete the works, upon receipt of at least 72 hours' notice by email from the respondent, advising the date and approximate start time of the works. The works shall be undertaken as a single continuous operation to minimise the period without a fence, as far as practicable. 4. Within 60 days of the date of these orders, the respondent, at her expense, shall brace, shackle or otherwise restrain the potential movement of the residual bamboo and Golden Cane Palms below the level of the top of the fence to prevent the bamboo and palms from blowing into the fence under the influence of westerly winds, and causing further fence damage. 5. During September 2023 and March 2024, and during each September and March of each subsequent year, the respondent shall inspect the 300mm excavated trench along her rear boundary and remove any and all roots and shoots that have regrown into this area. 6. All works shall be completed during reasonable daytime working hours. 7. Should any bamboo culms emerge in the applicant's soil, or break towards the applicant's land, the applicant shall inform the respondent by email. The respondent shall reply within 72 hours by email, advising the applicant of the date and approximate start time, within the following 14 days, that the respondent shall access the applicant's land to remove the subject bamboo culms. 8. The applicant shall not remove or interfere with bamboo on the respondent's land, beyond the common boundary. J Douglas Acting Commissioner of the Court Amendments 26 September 2023 - Amendment of typographical error 06 November 2023 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") the Court of its own motion corrects Order 2 of the judgment to correct the length referred to in the order. 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: 06 November 2023