O'Neill v McDougall

[2017] NSWLEC 1600

Land and Environment Court

New South Wales

Medium Neutral Citation:	O’Neill v McDougall [2017] NSWLEC 1600
Hearing dates:	24 October 2017
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Damage to property; bamboo; location of bamboo
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Civil Procedure Act 2005
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms Bianca O’Neill (Applicant) Mr W McDougall (Respondent)
Representation:	Applicant: Ms B O’Neill (Litigant in person) Respondent: Mr W McDougall (Litigant in person)
File Number(s):	235112 of 2017
Publication restriction:	No

JUDGMENT

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

1. COMMISSIONER: In July 2017, Ms Clarke, the then owner of a property in Hannam Vale in the Greater Taree Shire, applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking removal of bamboo growing on her property which she claimed had spread from the respondent’s property.

2. Since the filing of the application and the on-site hearing in October 2017, Ms Clarke sold her property. The new owner, Ms O’Neill was aware of the Class 2 application and wishes to pursue the claim.

3. In accordance with s 64(4) of the Civil Procedure Act 2005 Ms O’Neill was substituted for the original applicant. Both the current and former applicants and the respondent, Mr McDougall, attended the on-site hearing.

4. Section 7 of the Trees Act enables an owner or occupier of land to 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 the Trees Act applies that is situated on adjoining land.

5. The Trees (Disputes Between Neighbours) Regulation 2014 prescribes bamboo as a tree to which the Trees Act applies.

6. The underlying assumption upon which the claim is based is that the bamboo, which is now well established on the applicant’s land, was/is substantially on the respondent’s land. The original applicant contends that she was informed that the respondent’s former partner planted the bamboo in the early 1990s in order to screen out the nearby village.

7. The respondent disputes this and stated that the bamboo was present when he purchased the land but had been kept down by cattle. He also stated that when he purchased the land there was no boundary fence and that the paddock in which the bamboo was growing, and in which the cattle were grazing, was across both parties’ properties. The respondent had the boundary surveyed and installed a fence along it. The bamboo grew more vigorously when the cattle were removed and he has been managing the bamboo on his side of the fence by regular slashing.

8. During the hearing, it was clear that while there is still bamboo on the respondent’s property, principally close to a first order watercourse and on a relatively steep embankment, there is substantially more bamboo on the applicant’s land.

9. There is no evidence, such as photographs and an early survey, to prove to the extent required by the Trees Act, that the bamboo originated on the respondent’s land. As such, the Court has no jurisdiction to determine the matter.

10. As a consequence, the only order that can be made is:

1. The application is dismissed.   

______________________

Judy Fakes

Acting Commissioner of the Court