Qian v Sandig [2024] NSWLEC 1137

Qian v Sandig [2024] NSWLEC 1137

The Court found that all bamboo was situated on land adjoining the applicants' land and that the applicants had made reasonable efforts to resolve the dispute. The video evidence was more persuasive than the respondent's expert evidence, because the experts inspected after culms had been removed, and established that the bamboo struck the dwelling with sufficient force to dislodge previously patched cladding. The bamboo therefore caused damage and remaining bamboo within 4 metres of the dwelling was likely to cause further damage, justifying Pt 2 orders for removal, prevention of regrowth, and compensation of $2,200. The Court was not satisfied that bamboo roots were likely to damage the...

Jurisdiction
Australia
Judgment Date
22 March 2024
Procedural Posture
Class 2 Application Under Pts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing
Outcome
The Pt 2A application was refused. The Pt 2 application was granted in part, with orders for removal of bamboo within 4 metres of the applicants' dwelling, prevention of regrowth in that area, payment of $2,200 compensation, and return of exhibits except Exhibits A, B, C and 3.
Legal Topics
['bamboo Hedge' 'adjoining Land' 'tree Damage to Property' 'removal or Pruning of Trees' 'compensation' 'obstruction of Views' 'obstruction of Sunlight' 'privacy and Amenity']
['trees Disputes Between Neighbours' 'property' 'land and Environment Court Class 2 Jurisdiction'] ['bamboo Hedge' 'adjoining Land' 'tree Damage to Property' 'removal or Pruning of Trees' 'compensation' 'obstruction of Views' 'obstruction of Sunlight' 'privacy and Amenity']

Case Brief

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Procedural Posture

Class 2 Application Under Pts 2 and 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing

Legal Issues

  1. 1 ["Whether the respondent's lots were land adjoining the applicants' land for the purposes of ss 7 and 14B of the Trees (Disputes Between Neighbours) Act 2006." "Whether the bamboo was situated wholly or principally on the respondent's land." 'Whether the applicants made a reasonable effort to reach agreement with the respondent before seeking orders.' "Whether the respondent's bamboo caused, was causing, or was likely in the near future to cause damage to the applicants' property." 'Whether orders should be made under Pt 2 for removal, prevention of regrowth, a root barrier, or compensation.' "Whether the bamboo severely obstructed sunlight to a window of the applicants' dwelling." "Whether the bamboo severely obstructed a view from the applicants' dwelling." "Whether the applicants' interest in removal, remedy or restraint of the view obstruction outweighed matters suggesting the undesirability of disturbing or interfering with the bamboo."]

Ratio Decidendi

The Court found that all bamboo was situated on land adjoining the applicants' land and that the applicants had made reasonable efforts to resolve the dispute. The video evidence was more persuasive than the respondent's expert evidence, because the experts inspected after culms had been removed, and established that the bamboo struck the dwelling with sufficient force to dislodge previously patched cladding. The bamboo therefore caused damage and remaining bamboo within 4 metres of the dwelling was likely to cause further damage, justifying Pt 2 orders for removal, prevention of regrowth, and compensation of $2,200. The Court was not satisfied that bamboo roots were likely to damage the...

Court Disposition

The Pt 2A application was refused. The Pt 2 application was granted in part, with orders for removal of bamboo within 4 metres of the applicants' dwelling, prevention of regrowth in that area, payment of $2,200 compensation, and return of exhibits except Exhibits A, B, C and 3.

Orders

  • ['The Pt 2A application is refused.' 'The Pt 2 application is granted to the extent of the following orders.' "Within 30 days of the date of these orders, the respondent, or a suitably qualified contractor engaged and paid for by the respondent, is to remove all bamboo on his property that, at ground level, is...