Falamaki v Ling [2024] NSWLEC 1371

Land and Environment Court New South Wales

Medium Neutral Citation: Falamaki v Ling [2024] NSWLEC 1371 Hearing dates: 26 March 2024 Date of orders: 02 July 2024 Decision date: 02 July 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders are: (1) The respondents are to engage and pay for an AQF level 3 (Trade level) Arborist, Bush Regenerator, Landscape Contractor or Horticulturalist with all appropriate insurances (the contractor) to remove all bamboo from the respondents' property. For the purpose of this order, bamboo removal on the respondents' property includes cutting stems to near ground level and promptly applying herbicide in accordance with specifications on the NSW Weedwise website. (2) The respondents are to engage and pay the contractor to remove all bamboo shoots and rhizomes from the applicants' property, with the exception of the masonry stairs, where accessible bamboo shall be poisoned but the stairs shall not be dismantled to excavate for rhizomes. For the purpose of this order, bamboo removal on the applicants' property includes all stems and rhizomes in proximity of the stone path, swimming pool, chicken coop and boundary gardens. The contractor is to make good the applicants' bamboo impacted areas by replacing any soil/ mulch/ surface treatment disturbed during the removal process, and resetting stone path pavers to render them secure and stable. (3) The works in Order (1) and Order (2) are to be completed within 90 days of the date of these orders. (4) The respondents are to engage and pay for an appropriately qualified contractor to follow up the works in Order (1) and Order (2) by removing/ cutting and poisoning any and all regrowth of bamboo from both the respondents' and the applicants' properties every 6 months, commencing from the date the works in Order (1) and Order (2) are first completed until such time as no regrowth of bamboo has occurred for a period of 3 consecutive years. (5) Where access to the applicants' property is required to quote or undertake the works, the applicants shall grant such access to the respondents or to the respondents' contractors, who satisfy the requirements of Order (1), upon receipt of at least 72 hours emailed notice. (6) All bamboo removal works shall be undertaken during reasonable daytime working hours and in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – rhizomatous bamboo – current and near future damage to property – balancing damage and environmental considerations with privacy Legislation Cited: Biodiversity Conservation Act 2016, Sch 2 Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2007, s 4 Uniform Civil Procedures Rules 2005, Sch 7 Cases Cited: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Prowse & anor v Porter & anor [2016] NSWLEC 1135 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, 2016 Category: Principal judgment Parties: Sara Falamaki (First Applicant) Philip Derrin (Second Applicant) Albert Ling (First Respondent) Ki Hyun Lee (Second Respondent) Representation: S Falamaki (Self-represented) (First Applicant) P Derrin (Self-represented) (Second Applicant) A Ling (Self-represented) (Respondents) File Number(s): 2024/8769 Publication restriction: Nil