Land and Environment Court New South Wales

• Medium Neutral Citation: Dias v Vaswani [2011] NSWLEC 1274
• Hearing dates: 14 September 2011
• Decision date: 14 September 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

1.The applicant is to obtain three quotes from trained horticulturists (minimum AQF level 3) to kill the bamboo present on his property using best industry practice for the removal of environmental weeds. The quotes must include control of the bamboo now, and again in six months' time.

2.The respondents are to select one of the quotes and the applicant is to engage that horticulturist to do the works.

3.The works in (1) must be completed initially within 30 days of the date of these orders and again within six months of the date of these orders.

4.Within 14 days of receiving from the applicant an invoice for the completed works in (1), the respondents are to pay the applicant the amount of that invoice.

5.The respondents are to engage and pay for an AQF level 3 horticulturist to control the bamboo present on their property using best industry practice for the removal of environmental weeds, no sooner than five months and no later than six months from the date of these orders.

• Catchwords: TREES [NEIGHBOURS]; damage to property; removal ordered; compensation ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280
• Category: Principal judgment
• Parties: APPLICANT; J Dias; RESPONDENTS; Mr & Mrs Vaswani
• File Number(s): 20364 of 2011

Judgment

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

1 COMMISSIONER : This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ) made by the owner of a property in Epping against the owners of bamboo growing on an adjoining property.

2 The applicant is seeking the removal of the bamboo's root mass within the respondents' property or, alternatively, that a root barrier be installed along the boundary to prevent the future spread of bamboo into his property.

Background

3 The applicant has owned and lived in the property for approximately 20 years.

4 The respondents have owned their property since 2002. The bamboo was planted by the previous owner of their property sometime after the applicant bought his property.

5 The bamboo grew to a height of perhaps six metres in that time, filling the respondents' garden beds along the southern and eastern edges of the rear garden.

6 The applicant first noticed bamboo spreading into his garden in 2010. Since then he has sprayed and cut bamboo shoots on two occasions.

7 On 13 July this year the respondents undertook removal of the bamboo within their property, employing somebody to cut the bamboo to a height of 15-20cm. On 1 August the bamboo stems were cut by another few centimetres and glyphosate was applied to the cut stems.

Evidence

8 The applicant pointed out in his property the bamboo shoots growing in the garden bed and lawn between his dwelling and the western boundary fence along the common boundary with the respondents' property.

9 The dwelling is set back approximately 4 metres from that boundary. A narrow garden bed along the fence has some vegetable seedlings; a 1-metre wide strip of paving runs alongside the dwelling; and the remainder of the area between the paving and the boundary is lawn.

10 A door from the dwelling opens on to the paving, providing access to this area of the garden.

11 Around 16 to 20 bamboo shoots up to 1.5m in height are growing in the lawn.

12 The applicant contends that the bamboo shoots have damaged the vegetable seedlings by suppressing their growth, have damaged the lawn, may damage the paving and dwelling in future, and may cause injury to his grandson while playing in the garden.

Other issues

13 The bamboo is of a spreading variety and is likely to reshoot from roots remaining in the ground. It is therefore likely that, although the bamboo has been cut down on the respondents' property, it may reshoot on that property and may also spread into the applicant's property in future.

Jurisdiction

14 According to Clause 4 of the Trees (Disputes Between Neighbours) Regulation 2007 bamboo is a plant prescribed in the definition of a tree in s 3(1) of the Act.

15 Before the Court can make orders, it must be satisfied that one of the tests under s 10(2) of the Act has been met: that the 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.

16 In this case I accept that it is reasonable for an owner of land to expect to be able to maintain an area of lawn near the rear of a dwelling.

17 As outlined in Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280 at [165], lawn can be defined as a corporeal hereditament and thus is property on the applicant's land.

18 I accept that the lawn has been damaged by the bamboo in that the bamboo prevents the lawn being used for the purpose for which it is intended, especially by interfering with access near the back door of the dwelling.

19 As one of the tests under s 10 is satisfied I can make orders regarding the bamboo.

20 Although the bamboo has for the most part been removed by the respondents, s 4(4) of the Act states that a tree that has been removed is still taken to be situated on the land.

Discretion

21 The Court is not obliged to make the orders that are sought but has the power to make orders described in s 9 considering the matters outlined in s 12 of the Act. In the case before me I consider the following matters to be relevant.

22 The bamboo was located on the respondents' property and has spread via roots to the applicant's property. It was principally on the respondents' land.

23 The applicant has taken some steps, albeit minor ones, to control the bamboo shoots on his land.

24 The respondents have removed the bamboo on their land to ground level and have undertaken to prevent its regrowth into the future.

25 I see no reason why the respondents would not do this, given that the majority of work involved in controlling the bamboo has now been completed, leaving lesser works in future to prevent its regrowth.

26 I accept that the respondents have undertaken control of the bamboo and will continue to do so. Given this, I do not see the need for roots to be ground out or for the installation of a root barrier.

27 The presence of bamboo within the applicant's property is a result of the respondents' bamboo spreading across the boundary. It must be controlled to restrain the damage it is causing and may cause in future.

Orders

28 In conclusion and for the foregoing reasons, the orders of the Court are:

(1) The applicant is to obtain three quotes from trained horticulturists (minimum AQF level 3) to kill the bamboo present on his property using best industry practice for the removal of environmental weeds. The quotes must include control of the bamboo now, and again in six months' time.

(2) The respondents are to select one of the quotes and the applicant is to engage that horticulturist to do the works.

(3) The works in (1) must be completed initially within 30 days of the date of these orders and again within six months of the date of these orders.

(4) Within 14 days of receiving from the applicant an invoice for the completed works in (1), the respondents are to pay the applicant the amount of that invoice.

(5) The respondents are to engage and pay for an AQF level 3 horticulturist to control the bamboo present on their property using best industry practice for the removal of environmental weeds, no sooner than five months and no later than six months from the date of these orders.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 22 September 2011