Prowse & anor v Porter & anor

[2016] NSWLEC 1135

Land and Environment Court

New South Wales

Medium Neutral Citation:	Prowse & anor v Porter & anor [2016] NSWLEC 1135
Hearing dates:	17 March, 6 April 2016
Date of orders:	12 April 2016
Decision date:	12 April 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted – see [38]
Catchwords:	TREES [NEIGHBOURS] Damage to property; spread of bamboo onto applicants’ land; damage to plants, paving and rockery.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Dias v Vaswani [2011] NSWLEC 1274 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Richard and Robin Prowse (Applicants) Gary Porter and Christine Heberlein (Respondents)
Representation:	Applicants: Mr G Farland (Barrister) Respondents: Mr G Porter and Ms C Heberlein (Litigants in person)   Solicitors: Applicants: Hones Lawyers
File Number(s):	21100 of 2015

Judgment

1. COMMISSIONER:   The applicants own a property in Castle Cove. In 2009 they widened their driveway at the front of their property and reconstructed the garden beds along their eastern boundary, the boundary they share with the respondents.

2. The replacement of the garden beds included the removal of soil and a root mass of rhizomatous bamboo which had moved into their property from the respondents’ garden. The applicants took the advice of their landscape contractor and had installed what they believed to be a root barrier at the back of the garden beds along the existing stone wall along the boundary. The product used is a type of drainage cell not usually used as a root barrier but can be used to assist drainage along vertical and horizontal surfaces. The sandstone garden beds were built and filled with new soil. A watering system was installed and the beds planted with roses and perennials.

3. In their application claim form, the applicants state that for about the last ten years they have attempted to control the bamboo that has entered their property. Apart from cutting and poisoning the shoots themselves, they have employed garden maintenance firms to regularly maintain their garden and remove or treat the bamboo.

4. Sometime in 2015, the applicants stopped treating the bamboo in order seek some resolution of the matter by applying to the Court under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for orders for its removal from the respondents’ property.

5. Since the treatment stopped, the two front garden beds have been almost completely colonised by bamboo and other beds to the north have also been colonised but to a lesser extent. At the rear of their property the bamboo has grown through a garden bed on the northern side of the pool and several culms have grown through the mortar joints in paving as well as between stones in a terraced garden bed/rockery at the rear of their property.

6. The orders sought by the applicants are summarised as:

• Within 30 days the respondents are to remove all bamboo from their property within 3m of the common boundary.

• The removal is to be followed up in 6 months

• The 3m strip…