Prowse & anor v Porter & anor [2016] NSWLEC 1135

Prowse & anor v Porter & anor [2016] NSWLEC 1135

The respondents' bamboo had caused damage to the applicants' property, including stairs, rockery and plants in garden beds, and if left unchecked would continue to cause damage. Because the site topography and geology made a root barrier difficult and potentially ineffective, and because bamboo had spread by rhizomes many metres into the applicants' property and could regrow from rhizome fragments, complete removal of bamboo within 3m of the common boundary and ongoing follow-up control was the most effective long-term solution. The costs of the works were to be borne by the respondents, notwithstanding their complaint about the applicants' earlier inadequate barrier, because the bamboo...

Jurisdiction
Australia
Judgment Date
12 April 2016
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing and Site Inspection
Outcome
Application granted.
Legal Topics
['spread of Bamboo Onto Neighbouring Land' 'damage to Plants, Paving, Stairs and Rockery' 'root Barriers' 'removal and Control of Bamboo' 'costs of Remedial Works']
['trees Disputes' 'neighbour Disputes' 'property Damage'] ['spread of Bamboo Onto Neighbouring Land' 'damage to Plants, Paving, Stairs and Rockery' 'root Barriers' 'removal and Control of Bamboo' 'costs of Remedial Works']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing and Site Inspection

Legal Issues

  1. 1 ["Whether the respondents' bamboo had caused, was causing, or was likely in the near future to cause damage to the applicants' property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the appropriate order was removal and ongoing control of bamboo or installation of a root barrier.' 'Whether the respondents should bear the cost of remedial works and contribute to replacement plants.']

Ratio Decidendi

The respondents' bamboo had caused damage to the applicants' property, including stairs, rockery and plants in garden beds, and if left unchecked would continue to cause damage. Because the site topography and geology made a root barrier difficult and potentially ineffective, and because bamboo had spread by rhizomes many metres into the applicants' property and could regrow from rhizome fragments, complete removal of bamboo within 3m of the common boundary and ongoing follow-up control was the most effective long-term solution. The costs of the works were to be borne by the respondents, notwithstanding their complaint about the applicants' earlier inadequate barrier, because the bamboo...

Court Disposition

Application granted.

Orders

  • ["The respondents are to engage and pay for an appropriately qualified contractor to remove all bamboo from the respondents' property for a distance of 3m from the common boundary, and to remove all bamboo from the applicants' property except for the two front garden beds and the stems growing through the stairs and...