Gill v Chen [2022] NSWLEC 1748

Gill v Chen [2022] NSWLEC 1748

Roots from respondent's bamboo caused damage to applicant's pool pipes, and ongoing bamboo encroachment prevents the applicant from using his backyard, constituting damage within the meaning of the Act and hindrance in corporeal hereditaments. Orders for comprehensive bamboo removal and maintenance, at respondent's expense, are justified despite prior existence of bamboo because its invasiveness and failure to manage adequately are determinative.

Jurisdiction
Australia
Judgment Date
26 September 2023
Procedural Posture
Tree Dispute (damage to Property)/class 2 / Principal Judgment
Outcome
Orders made for removal, poisoning, and ongoing maintenance to eliminate bamboo at respondent's expense; additional order for applicant to plant privacy tree.
Legal Topics
['trees (disputes Between Neighbours)' 'damage From Rhizomatous Bamboo' 'corporeal Hereditaments' 'remedial Orders for Encroaching Plants']
['environmental Law' 'property Law' 'neighbour Disputes'] ['trees (disputes Between Neighbours)' 'damage From Rhizomatous Bamboo' 'corporeal Hereditaments' 'remedial Orders for Encroaching Plants']

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Procedural Posture

Tree Dispute (damage to Property)/class 2 / Principal Judgment

Legal Issues

  1. 1 ["Did roots from rhizomatous bamboo on the respondent's property cause damage to applicant's pool pipes?" "Has bamboo hindered applicant's full use of his property (corporeal hereditaments)?" 'Should orders be made for removal and management of bamboo?' 'Is the respondent responsible for removal costs?']

Ratio Decidendi

Roots from respondent's bamboo caused damage to applicant's pool pipes, and ongoing bamboo encroachment prevents the applicant from using his backyard, constituting damage within the meaning of the Act and hindrance in corporeal hereditaments. Orders for comprehensive bamboo removal and maintenance, at respondent's expense, are justified despite prior existence of bamboo because its invasiveness and failure to manage adequately are determinative.

Court Disposition

Orders made for removal, poisoning, and ongoing maintenance to eliminate bamboo at respondent's expense; additional order for applicant to plant privacy tree.

Orders

  • ["Within 45 days, respondent to cut, poison, and remove all bamboo stems growing on sloping bank adjacent to common boundary and bank behind applicant's north side neighbour for first 2m north." 'Respondent to inspect removal areas during April/November 2024 and subsequent years, and cut, poison, and remove any...