Land and Environment Court New South Wales Medium Neutral Citation: Crowley v Phillips-Skeer Pty Ltd [2012] NSWLEC 1066 Hearing dates: 8 March 2012 Decision date: 08 March 2012 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The respondent is to remove all bamboo from the narrow bed along the common boundary with the applicants' property, to the northern end of the applicants' property, within 40 days of the date of these orders. (2) The applicants are to remove all bamboo within their property within 30 days of the date of these orders. (3) The applicants are to obtain three quotes from fencing contractors for replacing the section of wooden fence along the common boundary between the applicants' and respondent's properties, and for making good the section of brush fencing at the southern end, and provide such quotes to the respondent within 30 days of the date of these orders. (4) Within seven days of receiving the quotes from the applicants the respondent is to select one of the quotes and notify the applicants of her choice. (5) The applicants are to contact the selected fencing contractor and book the works, which are to be completed within 120 days of the date of these orders. (6) The respondent and the applicants are each to pay the fencing contractor 50% of the quoted sum for the works. (7) The applicants are to remove any bamboo that regrows on their property. (8) The respondent is to remove any bamboo that regrows in that part of the garden bed that adjoins the boundary with the applicants' property. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; removal ordered; fence to be replaced. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Debbie and Brett Crowley (Applicant) Phillips-Skeer Pty Ltd (Respondent) Representation: Carol Phillips (Applicant in person) Brett Crowley (Respondents in person) File Number(s): 21166 of 2011 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: Two adjoining properties that provide accommodation in Cronulla - the Cronulla Motor Inn and Guest House 83 - share a long boundary. In a narrow garden bed between the boundary and the driveway of the Cronulla Motor Inn grows a screening hedge of bamboo. The wooden fence along the boundary is leaning and somewhat dilapidated. Background to the application 2Mr and Mrs Crowley, the owners of Guest House 83 and the applicants in this matter, claim that the bamboo has damaged the fence and, under the Trees (Disputes Between Neighbours) Act 2006 , seek orders for the removal of the bamboo and replacement of the fence at the respondent's expense. 3Ms Carol Phillips, an owner of the Cronulla Motor Inn, the respondent in this matter, wishes to retain the bamboo for the benefits it provides. She contends that the fence's condition is due to its age and would prefer to see the fence removed and the bamboo maintained along the boundary. 4I must determine if the bamboo has caused damage to the fence and, if so, what orders, if any, would be appropriate to remedy, restrain or prevent such damage. Evidence 5The onsite hearing began on the respondent's property to view the bamboo and the condition of the fence and then proceeded to the applicant's property to view the bamboo, the fence, an air-conditioner and the kitchen. 6The bamboo grows in a narrow bed along the boundary where it provides a dense screen to a height of more than two metres. The respondents maintain the bamboo on their side by trimming it against the driveway and along its top. 7The fence appears to be of a similar provenance to the fence along the respondent's eastern boundary further to the north. The respondent pointed to the similar dilapidated and leaning condition of that section of fence. 8According to the Ms Phillips the bamboo is a clumping variety, however it can be seen to be spreading into the applicants' property via runners, which have grown beneath a concrete path and sprouted new shoots adjacent to the applicants' building. 9Mr Crowley pointed out the bamboo growing through the fence palings and pushing against the lower part of the fence. 10There is a single air-conditioner unit, a split system, outside the kitchen of the applicants' property. This provides cooling for the kitchen and dining areas. There are several air-conditioner units on the outside of the respondent's property facing the applicants' building. Submissions 11The applicants submit that they cannot trim the bamboo on their side because it grows against the fence. They can only cut those parts that grow through the fence. Therefore, they cannot prevent it from growing against the fence and damaging it; nor could they prevent it from damaging a new fence. 12The applicants concede that the fence is ageing and may require replacement regardless of the bamboo. 13The applicants state that they did not notice the condition of the fence when they purchased the property in January 2009. They brought the matter to the respondent's attention in May or June of 2011. 14The Crowleys contends that the only way to replace the fence and prevent further damage is to remove the bamboo. They appreciate the benefits of screening provided by the bamboo and would be happy to have something else planted along the boundary. They do not want something that would require high levels of maintenance. 15Ms Phillips says that managers of her property were first made aware of the issue in September 2011. 16She contends that the bamboo provides not only a visual screen between the properties, so that guests at the motor inn do not have to look at the neighbouring building, which she says is unattractive, but also dampens the sound of the applicants' air-conditioner unit and noises from the kitchen. 17She says that the bamboo and the fence have been there for 50 years without problem. The bamboo provides environmental benefits in a heavily developed area. Its removal would devalue her property. 18Ms Phillips would be willing to commit to maintaining the bamboo from both sides if the fence is removed and the bamboo retained. However the Crowleys would not be happy with this arrangement due to ongoing maintenance issues. They also point out that the respondent has the property on the market and she cannot make such a commitment on the new owner's behalf. Findings 19Bamboo is a tree according to the act. 20I note the age of the fence and accept that its condition would be poor regardless of the bamboo. Despite this it is clear that the bamboo has caused some damage to the fence. Therefore the test at s 10(2)(a) of the Act is satisfied and the court has jurisdiction. The age and condition of the fence will need to be considered, however, in determining appropriate orders. 21Although the respondent expressed her willingness to maintain the hedge, I note that even she stated she may not own the property for much longer. Her commitment may therefore be likely to fall onto another party in the near future, a party who has not expressed such willingness. I therefore consider it would be inappropriate to give this much weight. 22The applicants have a reasonable expectation of being able to routinely and efficiently maintain a fence. It would be difficult to achieve this with the bamboo present. I accept the applicants' contention that a new fence would also be damaged be the spread of bamboo. Conclusions 23I note the benefits provided by the bamboo, benefits appreciated by both parties. In my view, however, the bamboo has contributed to damage to the fence and would be likely to do so to a new fence. I consider it necessary that the bamboo be removed along that section of the respondent's boundary shared with the applicants. A new wooden paling fence will need to be built. 24It will benefit both parties to have new trees or shrubs planted. The garden bed is on the respondent's land so it should be up to the respondent to decide on an appropriate planting. The court will not make any orders regarding replanting. 25As the fence would need replacement regardless of the bamboo, the costs of fence replacement should be shared equally by the parties. Ongoing removal of bamboo as it regrows will be required. It seems likely that bamboo had already spread across the boundary at the time the applicants purchased their property, so removal of bamboo from their own property, now and into the future, is their responsibility. Orders 26The orders of the Court are as follows. (1)The respondent is to remove all bamboo from the narrow bed along the common boundary with the applicants' property, to the northern end of the applicants' property, within 40 days of the date of these orders. (2)The applicants are to remove all bamboo within their property within 30 days of the date of these orders. (3)The applicants are to obtain three quotes from fencing contractors for replacing the section of wooden fence along the common boundary between the applicants' and respondent's properties, and for making good the section of brush fencing at the southern end, and provide such quotes to the respondent within 30 days of the date of these orders. (4)Within seven days of receiving the quotes from the applicants the respondent is to select one of the quotes and notify the applicants of her choice. (5)The applicants are to contact the selected fencing contractor and book the works, which are to be completed within 120 days of the date of these orders. (6)The respondent and the applicants are each to pay the fencing contractor 50% of the quoted sum for the works. (7)The applicants are to remove any bamboo that regrows on their property. (8)The respondent is to remove any bamboo that regrows in that part of the garden bed that adjoins the boundary with the applicants' property. 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: 21 March 2012