George v Cheng

[2023] NSWLEC 1204

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

George v Cheng [2023] NSWLEC 1204

Hearing dates:

24 April 2023

Date of orders:

03 May 2023

Decision date:

03 May 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is granted to the extent of the following orders.

(2)   Within 30 days of the date of these orders, the respondent is to remove all bamboo within 6 metres of the common boundary shared with the applicant.

(3)   Within 30 days of the date of these orders, the applicant is to remove all bamboo within 6 metres of the common boundary shared with the respondent.

(4)   The respondent is to ensure all fencing works along the common boundary are carried out in accordance with the Dividing Fences Agreement (‘the fencing agreement’) between herself and Susannah George dated 28 March 2023.

(5)   The respondent is to give the applicant 2 days’ notice of all fencing works done under the fencing agreement.

(6)   The applicant is to allow any access necessary for the fencing works to be completed in accordance with the fencing agreement. The applicant is not to interfere with the works or otherwise prevent their timely completion.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – damage to fence – whether the applicant is an owner – fencing agreement – orders to carry out works according to the fencing agreement

Legislation Cited:

Dividing Fences Act 1991, ss 3, 13A

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Texts Cited:

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Elizabeth Alumootil George (Applicant)
Peggy Heung Ping Cheng (Respondent)

Representation:

E George (Self-represented) (Applicant)
P Cheung (Self-represented) (Respondent)

File Number(s):

2023/35397

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Elizabeth George (the applicant) lives in the Strathfield property owned by her mother, Susannah George. To the applicant’s west, Peggy Cheung (the respondent) owns a rental property. The parties agree that bamboo and a palm tree growing in Ms Cheung’s garden damaged the fence on their common boundary. Ms Cheung has come to an agreement with Susannah George for replacing the fence (Dividing Fences Agreement). The applicant says she is estranged from her mother. The applicant, concerned that she is unaware of all aspects of the agreement, and wanting further works completed, has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the respondent to (copied below from the application):

“Remove all bamboo (and roots) within 3 metres of the common boundary at their own cost;

Remove all bamboo (and roots) from the applicant’s property at their own cost;

To install a root barrier along the boundary (on Respondents' side of the boundary line) to prevent any further damage, at their own cost;

Dividing Fence to be replaced along the entirety of the common boundary (cost to Respondent 75%, cost to Applicant 25%, on the basis that the bamboo and palm tree have damaged 3/4 of the fence);

Re-establish boundary lines (Fence is now displaced from its original alignment especially where the palm tree is leaning against it. Fence is no longer on the boundary line alignment, but corner posts of adjoining fences indicate the boundary's true alignment);

Remove and replace the soil in the Applicants' garden beds at their own cost (make good);

Ensure any future regrowth of bamboo within the 3 metre area is eradicated at their own cost;

Regularly maintain/prune any new shrubs or bushes if intended to be a hedge;

Removal of the palm tree (and roots) at their own cost;

The replacement of soil and garden beds and the dismantling and reconstruction of the paving tiles in garden bed to be carried out by a landscape contractor.”

2. The respondent has removed her palm tree and proposed alternative orders. The respondent has reached agreement with Susannah George regarding the fence.

3. The hearing took place onsite. Parties were self-represented. Many submissions raised during the hearing, particularly by the applicant, are not relevant to my decision, and so are not considered here. Below I include consideration of matters that are relevant to these proceedings.

4. At the end of the onsite hearing, I made the following interlocutory orders:

1. By midday on 31 March 2023, the respondent is to file with the Court and serve on the applicant a new Dividing Fences Agreement between the respondent and the title holder (Susannah George) of the property occupied by the applicant. The agreement must include the following:

1. Acknowledgment that Susannah George has received copies of:

1. the Boundary Notice (14 March 2023),

2. the Conolly Surveying property survey plan (17 March 2023), and

3. the Notice to Carry Out Fencing Works (21 March 2023).

2. Demonstration of agreement that the boundary fence shall be constructed along the boundary alignment shown on the Conolly Surveying property survey plan (17 March 2023), which differs from the alignment of the current boundary fence; alternatively, an agreed method for establishing the boundary line.

3. Identification of the contractor to be engaged to carry out the fencing works, and the quote relied upon.

4. The terms of payment of the fencing costs.

5. A statement that access for materials and workers will be through the Respondent’s property, with access to the applicant’s property restricted to that reasonably necessary to remove the existing fence and to construct a new fence.

6. Identification of persons responsible for clearing vegetation and any mounded soil along each side of the boundary, within 0.5 metres of the boundary, prior to fencing works.

2. If no such agreement satisfying order (1) is filed, the matter will be relisted for further hearing. Otherwise, the decision is reserved to be handed down within 14 days of today’s hearing.

5. The respondent filed with the Court a new Dividing Fences Agreement that satisfied the orders above.

The applicant is an owner under the Trees Act

6. Section 7 of the Trees Act enables a land owner to apply to the Court.

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

7. Definitions at s 3 of the Trees Act state that, in this Act:

owner of land includes the occupier of the land.

8. It follows that Elizabeth George is an owner of the land she occupies, for the purposed of the Trees Act, and therefore she can make her application.

The respondent’s trees have damaged the applicant’s property

9. The respondent does not dispute that her palm tree and bamboo damaged the fence along the common boundary. She has removed the palm tree and some of the bamboo near the fence. She wishes to retain a patch of bamboo further from the fence to provide some visual screening between the properties.

10. The applicant claims that bamboo has also damaged garden edging and the surface of her garden. The Court viewed this area of her garden. Bamboo has spread across the boundary and grows in her garden. A gardener engaged by Susannah George has controlled the bamboo to some extent. The garden surface is uneven, but this appears to be due to factors beyond the bamboo. It is not a formal, maintained garden bed. Other plants have grown, and soil has been disturbed, not just by bamboo growth. I asked the applicant to point to the damaged garden edging. Bricks or pavers that she pointed out were at random locations and their distribution did not appear to be the result of becoming displaced by bamboo growth. Although I accept that she might find the spread of bamboo into her property a nuisance, I find the bamboo has caused no substantial damage to her property beyond the boundary fence.

11. I am satisfied that the respondent’s trees damaged the boundary fence, being property on the applicant’s land. According to s 10(2)(a) of the Trees Act, the Court can make orders. I have considered all relevant matters at s 12 of the Trees Act in reaching the following decision.

The applicant is not an owner under the Dividing Fences Act

12. Section 13A of the Dividing Fences Act1991 (the Fences Act) gives this Court the jurisdiction to make orders for an entire fence, where a tree has damaged part of the fence. The applicant submitted that she is an owner of her property for the purposes of the Fences Act, and indeed for the purposes of property law, saying she is entitled to live there for life and will inherit the property. She asked to submit further evidence, including a voice recording, to demonstrate this. As the applicant has instigated these proceedings and had sufficient time to file evidence in accordance with the Court’s directions, further evidence was not allowed.

13. The applicant did not provide evidence that would satisfy the Court that she meets any of the definitions of ‘owner’ at s 3 of the Fences Act. I find that the applicant is not an owner for the purposes of the Fences Act. Therefore, the Court cannot make orders pursuant to the Fences Act in these proceedings.

The fencing agreement resolves most issues

14. The respondent and Susannah George (the applicant’s mother) signed a fencing agreement on 1 March 2023. A fencing quote attached to that agreement outlines the nature of the fencing works, being replacement of the fence along the common boundary. The agreement included clearing of vegetation along the boundary within 0.5 metres of the existing fence.

15. The applicant submitted that the agreement does not resolve all issues. Bamboo is likely to regrow from the area of bamboo being retained by the respondent. She wants all bamboo removed within 3 metres of the boundary. Furthermore, she wants a root barrier installed to prevent the spread of bamboo in future.

16. The respondent provided a boundary survey that shows the existing fence is not located on the boundary. The applicant is concerned that the new fence will encroach onto her land.

17. The applicant wants the terms of payment for a new fence to differ from those agreed to in the fencing agreement.

18. If Susannah George is aware of the recent boundary survey, the fencing agreement she has reached with the respondent resolves most of the issues. I understand that the applicant feels excluded from the process, but an agreement between the property owners takes precedence over the issues raised by the applicant. The new fencing agreement dated 28 March 2023, following the Court’s orders of 24 March 2023, satisfies the Court that Susannah George is fully informed of the boundary survey and other relevant matters, and has willingly reached an agreement with Ms Cheng. The fence’s location is not for the applicant to decide, nor are the terms of payment for the fence agreed to by Susannah George and Ms Cheng.

19. I accept the applicant’s submissions that this spreading variety of bamboo, having demonstrated its invasive qualities, is likely to spread further again, in which case further fence damage would be likely. In the interest of minimising the potential for ongoing disputes between the parties, I will order the removal of all bamboo on the respondent’s property within 6 metres of the boundary. The removal of bamboo negates the need for any root barrier. The fencing agreement includes a statement that Susannah George’s gardener will remove vegetation on her property within 0.5 metres of the boundary. The applicant will be required to remove bamboo within 6 metres of the boundary on her property, to prevent it spreading and damaging the fence in future. Involving the respondent in bamboo removal on the applicant’s property is only likely to result in further potential cause for dispute.

Orders

20. As a result of the foregoing, the Court orders:

1. The application is granted to the extent of the following orders.

2. Within 30 days of the date of these orders, the respondent is to remove all bamboo within 6 metres of the common boundary shared with the applicant.

3. Within 30 days of the date of these orders, the applicant is to remove all bamboo within 6 metres of the common boundary shared with the respondent.

4. The respondent is to ensure all fencing works along the common boundary are carried out in accordance with the Dividing Fences Agreement (‘the fencing agreement’) between herself and Susannah George dated 28 March 2023.

5. The respondent is to give the applicant 2 days’ notice of all fencing works done under the fencing agreement.

6. The applicant is to allow any access necessary for the fencing works to be completed in accordance with the fencing agreement. The applicant is not to interfere with the works or otherwise prevent their timely completion.

D Galwey

Acting Commissioner of the Court

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Amendments

05 May 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to a typographical error at [10].

05 May 2023 - Amendment made to typographical error at paragraph [10]

Decision last updated: 05 May 2023