Falamaki v Ling - [2024] NSWLEC 1371

Land and Environment Court

New South Wales

Medium Neutral Citation: Falamaki v Ling [2024] NSWLEC 1371
Hearing dates: 26 March 2024
Date of orders: 02 July 2024
Decision date: 02 July 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) 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. For the purpose of this order, bamboo removal on the respondents’ property includes cutting stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website.
(2) The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants’ property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants’ property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants’ bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable.
(3) The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders.
(4) The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents’ and the applicants’ properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years.
(5) Where access to the applicants’ property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice.
(6) All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – rhizomatous bamboo – current and near future damage to property – balancing damage and environmental considerations with privacy

Legislation Cited:
Biodiversity Conservation Act 2016, Sch 2
Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006,
Pt 2, ss 7, 8, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2007, s 4
Uniform Civil Procedures Rules 2005, Sch 7

Cases Cited:
Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285
Prowse & anor v Porter & anor [2016] NSWLEC 1135
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri

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 Falamaki v Ling

Details

AGLC: Falamaki v Ling [2024] NSWLEC 1371
Case: [2024] NSWLEC 1371
Decision Date: 02 July 2024

CaseChat Overview and Summary

In the case of Falamaki v Ling, the parties were neighbours who were in dispute over the presence and spread of bamboo on their properties. The matter was heard in the Supreme Court of New South Wales, where the applicants sought orders to address the proliferation of bamboo on the respondents' property and its impact on their own land. The applicants argued that the bamboo was spreading from the respondents' property, causing damage and inconvenience, and sought an injunction and other relief to control and eradicate the bamboo.

The central legal issues before the court were whether the applicants were entitled to an injunction to compel the respondents to remove the bamboo, and if so, what specific orders should be made to address the problem. The applicants argued that the respondents' failure to control the bamboo constituted a nuisance and that the court should grant an injunction to compel the removal of the bamboo from both properties, including the rhizomes, and to prevent future regrowth. The respondents contested the claims, asserting that they had taken reasonable steps to manage the bamboo and that the applicants' requests were excessive and not necessary.

The court found that the presence of the bamboo was indeed a nuisance, as it had spread from the respondents' property to the applicants' property, causing harm and inconvenience. The court held that the applicants were entitled to an injunction requiring the respondents to take specific steps to remove the bamboo from both properties, including the rhizomes, and to prevent future regrowth. The court set out detailed orders for the removal of the bamboo, specifying the qualifications of the contractors to be engaged, the methods to be used, and the timeline for completion. The court also made provision for ongoing maintenance to prevent the regrowth of bamboo and ordered the applicants to grant access to their property for the purposes of the works.

The court's final orders included specific instructions for the removal of bamboo from both properties, the qualifications of the contractors to be engaged, the methods to be used, and the timeline for completion. The court also ordered the respondents to engage qualified contractors to maintain the properties and prevent the regrowth of bamboo for a period of three years. The applicants were required to grant access to their property for the purposes of the works, upon receipt of appropriate notice. The court's orders aimed to address the nuisance caused by the bamboo and provide a long-term solution to prevent its spread and regrowth.

Orders

Orders of the court

The Court orders are:

(1) 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. For the purpose of this order, bamboo removal on the respondents’ property includes cutting stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website.

(2) The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants’ property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants’ property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants’ bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable.

(3) The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders.

(4) The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents’ and the applicants’ properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years.

(5) Where access to the applicants’ property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice.

(6) All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Falamaki v Ling [2024] NSWLEC 1371
Hearing dates:	26 March 2024
Date of orders:	02 July 2024
Decision date:	02 July 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) 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. For the purpose of this order, bamboo removal on the respondents’ property includes cutting stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website. (2) The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants’ property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants’ property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants’ bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable. (3) The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders. (4) The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents’ and the applicants’ properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years. (5) Where access to the applicants’ property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents’ contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice. (6) All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – rhizomatous bamboo – current and near future damage to property – balancing damage and environmental considerations with privacy
Legislation Cited:	Biodiversity Conservation Act 2016, Sch 2 Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2007, s 4 Uniform Civil Procedures Rules 2005, Sch 7
Cases Cited:	Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Prowse & anor v Porter & anor [2016] NSWLEC 1135 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri