Frigo v Fokkes [2018] NSWLEC 1240

Frigo v Fokkes [2018] NSWLEC 1240

The bamboo's mere presence on the applicant's land was not damage under the Trees Act. The Court was not satisfied that bamboo caused or was likely in the near future to cause damage to the driveway or PVC stormwater pipe. The bamboo had caused some minor damage to the older boundary fence, enlivening jurisdiction, but the fence remained fit for purpose and replacement, soil removal and a concrete root barrier were disproportionate. Given the limited remaining live bamboo, regular cutting and painting of any shoots with suitable herbicide on both properties for two years was sufficient to prevent further damage.

Jurisdiction
Australia
Judgment Date
15 May 2018
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Bamboo Between Neighbours / Onsite Hearing; Principal Judgment and Orders
Outcome
Limited orders made for both parties to monitor and treat bamboo shoots; claims for driveway damage, stormwater pipe damage, fence replacement, soil removal and concrete root barrier were not granted.
Legal Topics
['bamboo Encroachment' 'damage to Property' 'damage to Driveway' 'damage to Stormwater Pipe' 'damage to Dividing Fence' 'root Barrier' 'herbicide Treatment' 'compensation for Damage']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['bamboo Encroachment' 'damage to Property' 'damage to Driveway' 'damage to Stormwater Pipe' 'damage to Dividing Fence' 'root Barrier' 'herbicide Treatment' 'compensation for Damage']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 (nsw) Concerning Bamboo Between Neighbours / Onsite Hearing; Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether the bamboo caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW)." "Whether bamboo caused damage to the applicant's driveway." "Whether bamboo caused damage to the applicant's PVC stormwater pipe." 'Whether bamboo caused damage to the boundary fence and whether any fence orders should be made.' 'Whether a concrete root barrier and soil removal were required to prevent future bamboo damage.' 'What orders were appropriate to control any remaining bamboo growth.']

Ratio Decidendi

The bamboo's mere presence on the applicant's land was not damage under the Trees Act. The Court was not satisfied that bamboo caused or was likely in the near future to cause damage to the driveway or PVC stormwater pipe. The bamboo had caused some minor damage to the older boundary fence, enlivening jurisdiction, but the fence remained fit for purpose and replacement, soil removal and a concrete root barrier were disproportionate. Given the limited remaining live bamboo, regular cutting and painting of any shoots with suitable herbicide on both properties for two years was sufficient to prevent further damage.

Court Disposition

Limited orders made for both parties to monitor and treat bamboo shoots; claims for driveway damage, stormwater pipe damage, fence replacement, soil removal and concrete root barrier were not granted.

Orders

  • ["For two years from the date of these orders, every 3 months (or more frequently should they wish) the respondents are to cut and paint with a suitable herbicide, used according to the manufacturer's directions, any bamboo shoots on their property." "For two years from the date of these orders, every 3 months (or...