Falamaki v Ling [2024] NSWLEC 1371

Falamaki v Ling [2024] NSWLEC 1371

Actual and likely near-future property damage (lifting and destabilisation of stone path pavers, bamboo encroachment into stairs and deck) caused by the respondents' bamboo satisfied s 10(2)(a) of the Act. The respondents' root barrier/buffer proposal was found impractical and insufficient to prevent ongoing and future damage, especially considering the site context (Blue Gum roots, slope, bamboo biology). The applicants' proposal of complete removal and ongoing follow-up was proportionate and preferable in the circumstances. Discretionary considerations did not outweigh the need for effective prevention and remediation of further damage.

Jurisdiction
Australia
Judgment Date
02 July 2024
Procedural Posture
Application – Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Orders made for removal and eradication of bamboo, ongoing maintenance, and property remediation in favour of the applicants.
Legal Topics
['trees and Vegetation Disputes' 'bamboo Encroachment' 'neighbourhood Disputes' 'damage to Property' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']
['property Law' 'environmental Law'] ['trees and Vegetation Disputes' 'bamboo Encroachment' 'neighbourhood Disputes' 'damage to Property' 'jurisdiction Under Trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

Application – Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the respondents' bamboo has caused or is likely to cause damage to the applicants' property within the meaning of s 7 and s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the risk of injury engages s 10(2)(b) of the Act.' 'Whether discretionary considerations under s 12 of the Act support the making of orders for bamboo removal and ongoing eradication.']

Ratio Decidendi

Actual and likely near-future property damage (lifting and destabilisation of stone path pavers, bamboo encroachment into stairs and deck) caused by the respondents' bamboo satisfied s 10(2)(a) of the Act. The respondents' root barrier/buffer proposal was found impractical and insufficient to prevent ongoing and future damage, especially considering the site context (Blue Gum roots, slope, bamboo biology). The applicants' proposal of complete removal and ongoing follow-up was proportionate and preferable in the circumstances. Discretionary considerations did not outweigh the need for effective prevention and remediation of further damage.

Court Disposition

Orders made for removal and eradication of bamboo, ongoing maintenance, and property remediation in favour of the applicants.

Orders

  • ["The respondents are to engage and pay for an AQF level 3 (Trade level) Arborist, Bush Regenerator, Landscape Contractor or Horticulturalist with all appropriate insurances (the contractor) to remove all bamboo from the respondents' property. Bamboo removal includes cutting stems to near ground level and promptly...