Land and Environment Court New South Wales Medium Neutral Citation: Myjavec v Weatherall [2018] NSWLEC 1457 Hearing dates: 22 August 2018 Date of orders: 22 August 2018 Decision date: 22 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants' property. (2) The respondent is to give the applicants at least two days' notice of the works in order (1). (3) The applicants are to allow any access required for the works in (1) during reasonable hours of the day. (4) Beginning September 2019, and then annually during September, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants' property. (5) Each year the respondent is to give the applicants at least two days' notice of the works in (4). (6) Each year the applicants are to allow any access required for the works in (4) during reasonable hours of the day. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – bamboo – screening – orders for pruning Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Paul Myjavec (First Applicant) Kathleen Patricia Myjavec (Second Applicant) Anne Maree Weatherall (Respondent) Representation: P and K P Myjavec, litigants in person (Applicants) A M Weatherall, litigant in person (Respondent) File Number(s): 2018/145529 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. A clump of bamboo on Anne Maree Weatherall's (the respondent's) Coledale property provides screening between the rear of her dwelling and the neighbouring dwelling owned by the Myjavecs (the applicants). A rapidly growing species, the bamboo has reached a height of 7–8 m and overhangs the common boundary. Shorter culms of bamboo brush against the Myjavecs' dwelling. Taller culms hit their gutters when blowing in the wind. No damage has yet occurred but the Myjavecs are concerned it soon will. They have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders that the bamboo removed. 2. Ms Weatherall is willing to prune the bamboo but does not want it removed, as it provides visual screening between the two dwellings. Findings 1. The hearing took place onsite, allowing observations of the bamboo and dwellings. I bring my own arboricultural expertise and experience to this matter. 2. I find it likely that the shorter culms growing against or close to the Myjavecs' dwelling will scrape and damage, at least visually, their wall surface, as they move in the wind. I also find that taller culms, which are thick and hard, will damage their roof guttering when moving in the wind. Mr Myjavec showed video footage on his phone of these culms being blown and reaching their roof guttering. This satisfies the jurisdictional test at s 10(2) of the Trees Act. Bamboo is a tree for the purposes of the Trees Act. I can therefore make orders to prevent bamboo causing damage to the Myjavecs' dwelling. 3. The privacy and screening benefits provided to Ms Weatherall by the bamboo could be maintained with pruning. Although the Myjavecs want the bamboo removed so that it doesn't regrow and cause damage in future, future damage could be prevented through regular pruning. Therefore, I will make orders for Ms Weatherall to prune the bamboo annually. Some access may be required through the Myjavecs' property. Orders 1. As a result of the foregoing, the orders of the Court are: 1. Within 28 days of the date of these orders, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants' property. 2. The respondent is to give the applicants at least two days' notice of the works in order (1). 3. The applicants are to allow any access required for the works in (1) during reasonable hours of the day. 4. Beginning September 2019, and then annually during September, the respondent is to prune the bamboo to a height of no more than 2.5 metres above ground level, measured from the ground around the base of the bamboo clump, and remove any parts of the bamboo that overhang the applicants' property. 5. Each year the respondent is to give the applicants at least two days' notice of the works in (4). 6. Each year the applicants are to allow any access required for the works in (4) 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: 27 August 2018