Gill v Chen

[2022] NSWLEC 1748

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gill v Chen [2022] NSWLEC 1748

Hearing dates:

19 June 2023

Date of orders:

26 September 2023

Decision date:

26 September 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

(1) See orders at [34].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – rhizomatous bamboo – did roots damage pool pipes – hinderance in corporal hereditaments – orders made for bamboo

Legislation Cited:

The Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006

Pt 2; s 7, 8, 9, 10, 12

Trees (Disputes Between Neighbours) Regulation 2007, s 4

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Carter v MKTK Pty Ltd [2021] NSWLEC 1787

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016

Department of Primary Industries, “Rhizomatous bamboo (Phyllostachys species)”

Category:

Principal judgment

Parties:

Russell Gill (Applicant)
Xuekui Chen (Respondent)

Representation:

R Gill (Self-represented) (Applicant)
M Jaukovic (Solicitor) (Respondent)

Solicitors:
Monte Legal (Respondent)

File Number(s):

2023/101881

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Xuekui Chen, the respondent, owns a large property in Cremorne Point which is located on a slope that runs down to Shell Cove. Ms Chen’s property, which she purchased in February 2022 and leases to tenants, is bordered on both sides and at the rear by dense bamboo, about 6 m tall.

2. The applicant, Russell Gill, owns an adjacent neighbouring property and the parties share a rear boundary which extends from north, north-west to south, south-east. The properties are accessed from different streets and the applicant’s land is at a higher level than the respondent’s property, the rear of which had been excavated long ago to provide level ground for the dwelling.

3. The applicant purchased his property in 2015, completed dwelling renovations 6 years ago, and rear yard landscaping 5 years ago. Mr Gill’s property includes an inground swimming pool that was installed across the back yard around 2006, beyond which at a lower level is a triangle shaped garden between the pool and the rear boundary. The triangle shaped garden is about 3.5 m wide at the northern end and it narrows almost to a tip at the far southern end.

4. In late 2022, the applicant observed a drop in the pool water level, and upon investigating at the rear of the pool, he exposed a ruptured 50 – 75 mm PVC pipe, from which water surged. Aaron Torino, a plumber who repaired the pipe, reported bamboo roots in the pipe, which he considered had caused the pipe damage. Mr Gill said bamboo stems, which he claimed had encroached from the respondent’s property, had grown rapidly at the rear of his pool, and had also damaged a wooden staircase. Landscape gardeners removed all accessible bamboo stems and roots from the applicant’s rear garden and this required removal of almost all plants installed…