Fam v Wang - [2024] NSWLEC 1853

Land and Environment Court

New South Wales

Medium Neutral Citation: Fam v Wang [2024] NSWLEC 1853
Hearing dates: 19 September 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The orders of the Court are:
(1) Within 60 days of the date of these orders, the respondent, at his expense, shall remove all bamboo east of the side boundary between the applicant's property and the applicant's east side neighbour's property, comprising Mr Wang's bamboo clumps 1 and 2, and all bamboo culms (stems) which have encroached into the garden of the applicant's east side neighbour. The respondent shall maintain these areas free of bamboo in the future. Should replacement trees be planted on the respondent's land, east of the applicant's east side boundary, such replacement trees shall be maintained at a height not exceeding 2.5 metres.
(2) Within 60 days of the date of these orders, the respondent, at his expense, shall prune the remaining bamboo (comprising Mr Wang's bamboo clumps 3 - 6 inclusive), to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.
(3) During March 2025 and during March of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 3.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.
(4) During December 2025 and during December of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.
(5) The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(6) The applicant shall provide all required access for undertaking the pruning works or clearing debris upon 72 hours' notice from the respondent by email.
(7) All pruning works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of sunlight to windows of a dwelling – privacy important to respondent – orders balance both parties’ needs

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:
Wisdom v Payn [2011] NSWLEC 1012

Texts Cited:
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: Ihab Nassef Yanny Fam (Applicant)
Huisan Wang (Respondent)
Representation: I Fam (Self-represented) (Applicant)
H Wang (Self-represented) (Respondent)

File Number(s): 2024/250061
Publication restriction: Nil

Judgment

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

Background

Ihab Nassef Yanny Fam, the applicant,…

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 Fam v Wang

Details

AGLC: Fam v Wang [2024] NSWLEC 1853
Case: [2024] NSWLEC 1853
Decision Date: 19 September 2024

CaseChat Overview and Summary

Fam initiated legal proceedings against Wang, alleging that Wang's bamboo plants were encroaching upon Fam's property and obstructing their view and enjoyment of their backyard. The case was heard in the Local Court of New South Wales. Wang contested the claims, arguing that the bamboo was within his property boundaries and did not cause any harm to Fam.

The court had to determine whether Wang's bamboo constituted a nuisance by encroaching on Fam's property and whether Wang was required to take specific actions to mitigate the nuisance. The court also had to decide on the specific measures Wang should take to address the encroachment, including pruning and removal of bamboo.

The court found that Wang's bamboo indeed encroached on Fam's property, constituting a nuisance. The court emphasised that Wang's responsibility was to ensure his property did not negatively impact neighbouring properties. The court ordered Wang to remove certain bamboo clumps and stems and to maintain the area free of bamboo in the future. Additionally, the court mandated specific pruning schedules for the remaining bamboo to prevent future encroachments. The court also set out guidelines for the pruning works, including adherence to safety standards and access provisions.

The orders included detailed instructions for Wang to remove specific bamboo sections and to prune the remaining bamboo according to a specified schedule. The court required Wang to bear the costs of these works and specified the conditions under which they should be carried out.

Orders

Orders of the court

The orders of the Court are:

(1) Within 60 days of the date of these orders, the respondent, at his expense, shall remove all bamboo east of the side boundary between the applicant's property and the applicant's east side neighbour's property, comprising Mr Wang's bamboo clumps 1 and 2, and all bamboo culms (stems) which have encroached into the garden of the applicant's east side neighbour. The respondent shall maintain these areas free of bamboo in the future. Should replacement trees be planted on the respondent's land, east of the applicant's east side boundary, such replacement trees shall be maintained at a height not exceeding 2.5 metres.

(2) Within 60 days of the date of these orders, the respondent, at his expense, shall prune the remaining bamboo (comprising Mr Wang's bamboo clumps 3 - 6 inclusive), to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(3) During March 2025 and during March of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 3.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(4) During December 2025 and during December of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land.

(5) The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(6) The applicant shall provide all required access for undertaking the pruning works or clearing debris upon 72 hours' notice from the respondent by email.

(7) All pruning works shall be undertaken during reasonable daytime working hours.

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:	Fam v Wang [2024] NSWLEC 1853
Hearing dates:	19 September 2024
Date of orders:	19 September 2024
Decision date:	19 September 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The orders of the Court are: (1) Within 60 days of the date of these orders, the respondent, at his expense, shall remove all bamboo east of the side boundary between the applicant's property and the applicant's east side neighbour's property, comprising Mr Wang's bamboo clumps 1 and 2, and all bamboo culms (stems) which have encroached into the garden of the applicant's east side neighbour. The respondent shall maintain these areas free of bamboo in the future. Should replacement trees be planted on the respondent's land, east of the applicant's east side boundary, such replacement trees shall be maintained at a height not exceeding 2.5 metres. (2) Within 60 days of the date of these orders, the respondent, at his expense, shall prune the remaining bamboo (comprising Mr Wang's bamboo clumps 3 - 6 inclusive), to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land. (3) During March 2025 and during March of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 3.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land. (4) During December 2025 and during December of each subsequent year, the respondent, at his expense, shall prune the remaining bamboo to a height not exceeding 4.6 m above the level of the respondent's back deck, and prune and remove all bamboo foliage encroaching over the common boundary into the applicant's land. (5) The pruning works shall comply with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (6) The applicant shall provide all required access for undertaking the pruning works or clearing debris upon 72 hours' notice from the respondent by email. (7) All pruning works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – severe obstruction of sunlight to windows of a dwelling – privacy important to respondent – orders balance both parties’ needs
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14C, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	Ihab Nassef Yanny Fam (Applicant) Huisan Wang (Respondent)
Representation:	I Fam (Self-represented) (Applicant) H Wang (Self-represented) (Respondent)
File Number(s):	2024/250061
Publication restriction:	Nil