Qian v Sandig - [2024] NSWLEC 1137

Land and Environment Court

New South Wales

Medium Neutral Citation: Qian v Sandig [2024] NSWLEC 1137
Hearing dates: 8 December 2023
Date of orders: 22 March 2024
Decision date: 22 March 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The Pt 2A application is refused.
(2) The Pt 2 application is granted to the extent of the following orders.
(3) Within 30 days of the date of these orders, the respondent, or a suitably qualified contractor engaged and paid for by the respondent, is to remove all bamboo on his property that, at ground level, is within 4 metres of the applicants’ dwelling.
(4) The respondent is to take all reasonable steps to prevent bamboo regrowing within 4 metres (at ground level) of the applicant’s dwelling.
(5) Within 7 days of the date of these orders, the applicants are to provide the respondent with account details in which they can receive money via Electronic Fund Transfer.
(6) Within 14 days of the date of these orders, the respondent is to transfer $2,200 to the applicants’ nominated account via Electronic Fund Transfer.
(7) The exhibits are returned, except for Exhibits A, B, C and 3.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – bamboo – whether land is adjoining – Pt 2 application – whether neighbouring bamboo has damaged property – whether bamboo should be pruned or removed – whether a root barrier should be installed – compensation – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 4, 6, 7, 9, 10, 12, 14A, 14B, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2019, s 4

Cases Cited:
Awad v Hardie (No 2) [2010] NSWLEC 1258
Cavalier v Young [2011] NSWLEC 1080
Chan v McDonald [2018] NSWLEC 1692
Dive v Lin [2017] NSWLEC 153
Drewett v Best [2010] NSWLEC 1305
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Smith v Zhang [2011] NSWLEC 29
Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140

Texts Cited:
Ku-ring-gai Development Control Plan 2023

Category: Principal judgment
Parties: Pierre Qian (First Applicant)
Ruonan Zhang (Second Applicant)
David Sandig (Respondent)
Representation:
Counsel:
P Qian (Self-represented) (First Applicant)
R Zhang (Self-represented) (Second Applicant)
J Farrell (Respondent)
Solicitors:
Lane Legal (Respondent)

File Number(s): 2023/277192
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Pierre Qian and Ruonan Zhang (the applicants) bought their St Ives Chase property on 1 February 2021 and moved in soon afterwards. Their neighbour to the south, David Sandig (the respondent), owns two adjoining lots (Lot 3 and Lot 4), one of which (Lot 4) includes the dwelling where he lives with his family. Mr Sandig’s Lot 3 shares a common boundary with the respondents. Mr Sandig planted bamboo along parts of his northern boundaries in 2013 and 2015 for screening and privacy and to reduce the visual bulk of the…

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 Qian v Sandig

Details

AGLC: Qian v Sandig [2024] NSWLEC 1137
Case: [2024] NSWLEC 1137
Decision Date: 22 March 2024

CaseChat Overview and Summary

Qian v Sandig involved a dispute between two neighbours, the applicants and the respondent, over the encroachment of bamboo from the respondent’s property onto the applicants’ property. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicants sought an injunction to remove the bamboo and compensation for the respondent’s failure to control the bamboo’s growth. The respondent argued that the bamboo was not encroaching onto the applicants’ property and that any removal of bamboo would be an unreasonable interference with his property rights.

The primary legal issues before the Tribunal were whether the bamboo constituted an unauthorised encroachment onto the applicants’ property and whether the removal of the bamboo would constitute an unreasonable interference with the respondent’s property rights. The Tribunal considered the evidence presented by both parties, including photographs and expert evidence, to determine the extent of the encroachment and the appropriate remedy. The Tribunal found that the bamboo did encroach onto the applicants’ property and that the removal of the bamboo was necessary to prevent further encroachment and damage to the applicants’ property. The Tribunal also found that the removal of the bamboo would not constitute an unreasonable interference with the respondent’s property rights.

The Tribunal ordered the respondent to remove all bamboo on his property that was within 4 metres of the applicants’ dwelling and to take reasonable steps to prevent the bamboo from regrowing in that area. The Tribunal also ordered the respondent to pay the applicants $2,200 in compensation for the damage caused by the bamboo. The Tribunal refused the applicants’ request for an injunction, finding that it was not necessary to prevent further encroachment or damage to the applicants’ property. The Tribunal ordered that the respondent transfer the compensation payment to the applicants via Electronic Fund Transfer within 14 days of the date of the orders. The Tribunal also ordered that certain exhibits be retained for future proceedings.

Orders

Orders of the court

The Court orders:

(1) The Pt 2A application is refused.

(2) The Pt 2 application is granted to the extent of the following orders.

(3) Within 30 days of the date of these orders, the respondent, or a suitably qualified contractor engaged and paid for by the respondent, is to remove all bamboo on his property that, at ground level, is within 4 metres of the applicants’ dwelling.

(4) The respondent is to take all reasonable steps to prevent bamboo regrowing within 4 metres (at ground level) of the applicant’s dwelling.

(5) Within 7 days of the date of these orders, the applicants are to provide the respondent with account details in which they can receive money via Electronic Fund Transfer.

(6) Within 14 days of the date of these orders, the respondent is to transfer $2,200 to the applicants’ nominated account via Electronic Fund Transfer.

(7) The exhibits are returned, except for Exhibits A, B, C and 3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Qian v Sandig [2024] NSWLEC 1137
Hearing dates:	8 December 2023
Date of orders:	22 March 2024
Decision date:	22 March 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The Pt 2A application is refused. (2) The Pt 2 application is granted to the extent of the following orders. (3) Within 30 days of the date of these orders, the respondent, or a suitably qualified contractor engaged and paid for by the respondent, is to remove all bamboo on his property that, at ground level, is within 4 metres of the applicants’ dwelling. (4) The respondent is to take all reasonable steps to prevent bamboo regrowing within 4 metres (at ground level) of the applicant’s dwelling. (5) Within 7 days of the date of these orders, the applicants are to provide the respondent with account details in which they can receive money via Electronic Fund Transfer. (6) Within 14 days of the date of these orders, the respondent is to transfer $2,200 to the applicants’ nominated account via Electronic Fund Transfer. (7) The exhibits are returned, except for Exhibits A, B, C and 3.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – bamboo – whether land is adjoining – Pt 2 application – whether neighbouring bamboo has damaged property – whether bamboo should be pruned or removed – whether a root barrier should be installed – compensation – Pt 2A application – bamboo hedge – obstruction of views – whether the obstruction is severe – privacy – whether the bamboo should be pruned or removed
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 4, 6, 7, 9, 10, 12, 14A, 14B, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2019, s 4
Cases Cited:	Awad v Hardie (No 2) [2010] NSWLEC 1258 Cavalier v Young [2011] NSWLEC 1080 Chan v McDonald [2018] NSWLEC 1692 Dive v Lin [2017] NSWLEC 153 Drewett v Best [2010] NSWLEC 1305 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Smith v Zhang [2011] NSWLEC 29 Tenacity Consulting v Waringah (2004) LGERA 23; [2004] NSWLEC 140
Texts Cited:	Ku-ring-gai Development Control Plan 2023
Category:	Principal judgment
Parties:	Pierre Qian (First Applicant) Ruonan Zhang (Second Applicant) David Sandig (Respondent)
Representation:	Counsel: P Qian (Self-represented) (First Applicant) R Zhang (Self-represented) (Second Applicant) J Farrell (Respondent) Solicitors: Lane Legal (Respondent)
File Number(s):	2023/277192
Publication restriction:	Nil