Dias v Vaswani - [2011] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation: Dias v Vaswani [2011] NSWLEC 1274
Hearing dates: 14 September 2011
Decision date: 14 September 2011
Jurisdiction: Class 2
Before: Galwey AC
Decision:
1.The applicant is to obtain three quotes from trained horticulturists (minimum AQF level 3) to kill the bamboo present on his property using best industry practice for the removal of environmental weeds. The quotes must include control of the bamboo now, and again in six months' time.
2.The respondents are to select one of the quotes and the applicant is to engage that horticulturist to do the works.
3.The works in (1) must be completed initially within 30 days of the date of these orders and again within six months of the date of these orders.
4.Within 14 days of receiving from the applicant an invoice for the completed works in (1), the respondents are to pay the applicant the amount of that invoice.
5.The respondents are to engage and pay for an AQF level 3 horticulturist to control the bamboo present on their property using best industry practice for the removal of environmental weeds, no sooner than five months and no later than six months from the date of these orders.

Catchwords: TREES [NEIGHBOURS]; damage to property; removal ordered; compensation ordered.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280
Category: Principal judgment
Parties:
APPLICANT
J Dias
RESPONDENTS
Mr & Mrs Vaswani
File Number(s): 20364 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER : This is an application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ( the Act ) made by the owner of a property in Epping against the owners of bamboo growing on an adjoining property.

The applicant is seeking the removal of the bamboo's root mass within the respondents' property or, alternatively, that a root barrier be installed along the boundary to prevent the future spread of bamboo into his property.

Background

The applicant has owned and lived in the property for approximately 20 years.

The respondents have owned their property since 2002. The bamboo was planted by the previous owner of their property sometime after the applicant bought his property.

The bamboo grew to a height of perhaps six metres in that time, filling the respondents' garden beds along the southern and eastern edges of the rear garden.

The applicant first noticed bamboo spreading into his garden in 2010. Since then he has sprayed and cut bamboo shoots on two occasions.

On 13 July this year the respondents undertook removal of the bamboo within their property, employing somebody to cut the bamboo to a height of 15-20cm. On 1 August the bamboo stems were cut by another few centimetres and glyphosate was applied to the cut stems.

Evidence

The applicant pointed out in his property the bamboo shoots growing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dias v Vaswani

Details

AGLC: Dias v Vaswani [2011] NSWLEC 1274
Case: [2011] NSWLEC 1274
Decision Date: 14 September 2011

CaseChat Overview and Summary

The matter of Dias v Vaswani came before the court due to a dispute between the parties regarding the management and control of bamboo encroaching onto their respective properties. The applicants sought an injunction to control the bamboo on the respondents' property, which had spread onto their land. The court was tasked with determining the appropriate measures to manage and control the bamboo and to set out the steps each party must take to comply with the court's orders.

The primary legal issue before the court was how to effectively manage and control the bamboo to prevent it from causing further damage to the properties of both parties. The court needed to consider the best industry practices for the removal of environmental weeds and the roles and responsibilities of each party in ensuring the bamboo was adequately controlled. The applicants argued that the respondents' failure to control the bamboo on their property was causing significant damage to their property, and they sought an injunction to compel the respondents to take action. The respondents, on the other hand, contended that they had taken reasonable steps to manage the bamboo and that the applicants' proposed measures were excessive and unnecessary.

In delivering its decision, the court considered the evidence presented by both parties regarding the extent of the bamboo infestation and the effectiveness of various control measures. The court found that the bamboo was indeed an environmental weed and that its spread needed to be controlled to prevent further damage to both properties. The court ordered the applicants to obtain three quotes from qualified horticulturists to control the bamboo on both properties. The court also directed the respondents to engage a horticulturist to control the bamboo on their property within a specified timeframe. The court emphasised the importance of using best industry practices for the removal of environmental weeds and set out clear deadlines for the completion of the works and the payment of invoices.

The court's orders provided a structured and comprehensive approach to managing the bamboo infestation on both properties. The applicants were required to obtain quotes from qualified horticulturists and engage one of those horticulturists to control the bamboo on their property. The respondents were directed to engage a horticulturist to control the bamboo on their property within a specified timeframe. The court also set out clear deadlines for the completion of the works and the payment of invoices. These orders ensured that both parties took responsibility for managing the bamboo infestation and prevented further damage to their properties.

Orders

Orders of the court

1.The applicant is to obtain three quotes from trained horticulturists (minimum AQF level 3) to kill the bamboo present on his property using best industry practice for the removal of environmental weeds. The quotes must include control of the bamboo now, and again in six months' time.

2.The respondents are to select one of the quotes and the applicant is to engage that horticulturist to do the works.

3.The works in (1) must be completed initially within 30 days of the date of these orders and again within six months of the date of these orders.

4.Within 14 days of receiving from the applicant an invoice for the completed works in (1), the respondents are to pay the applicant the amount of that invoice.

5.The respondents are to engage and pay for an AQF level 3 horticulturist to control the bamboo present on their property using best industry practice for the removal of environmental weeds, no sooner than five months and no later than six months from the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Dias v Vaswani [2011] NSWLEC 1274
Hearing dates:	14 September 2011
Decision date:	14 September 2011
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1.The applicant is to obtain three quotes from trained horticulturists (minimum AQF level 3) to kill the bamboo present on his property using best industry practice for the removal of environmental weeds. The quotes must include control of the bamboo now, and again in six months' time. 2.The respondents are to select one of the quotes and the applicant is to engage that horticulturist to do the works. 3.The works in (1) must be completed initially within 30 days of the date of these orders and again within six months of the date of these orders. 4.Within 14 days of receiving from the applicant an invoice for the completed works in (1), the respondents are to pay the applicant the amount of that invoice. 5.The respondents are to engage and pay for an AQF level 3 horticulturist to control the bamboo present on their property using best industry practice for the removal of environmental weeds, no sooner than five months and no later than six months from the date of these orders.
Catchwords:	TREES [NEIGHBOURS]; damage to property; removal ordered; compensation ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280
Category:	Principal judgment
Parties:	APPLICANT J Dias RESPONDENTS Mr & Mrs Vaswani
File Number(s):	20364 of 2011