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
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:
Solicitors:
P Qian (Self-represented) (First Applicant)
R Zhang (Self-represented) (Second Applicant)
J Farrell (Respondent)
Lane Legal (Respondent)
File Number(s): 2023/277192 Publication restriction: Nil
Judgment
Background
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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…
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- AGLC
- Qian v Sandig [2024] NSWLEC 1137
- Case
- [2024] NSWLEC 1137
- Decision Date
CaseChat Overview and Summary
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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