Australia, July 14 -- New South Wales Land and Environment Court issued text of the following judgement on June 13:
1. COMMISSIONER: Ying Xiao (the applicant) and Biyun Yung (the respondent) are neighbours in Warrawee. A mature vine, a creeping fig, has grown on the dividing fence between their properties for many years. In April 2023, part of the fence collapsed into Ying Xiao's property. Both parties want to replace the fence, but could not agree on the method of its replacement, nor on the terms of payment for the costs of the works. They tried, unsuccessfully, to mediate during proceedings under the Dividing Fences Act 1991 in the NSW Civil and Administrative Tribunal. Ying Xiao then applied to the Land and Environment Court seeking orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The applicant's claim extends to a damaged brick wall on the boundary. The orders she sought in the originating application (Form C, Exhibit A) were:
1) That the Respondent remove the Ficus pumila (Creeping fig) (Trees) that are growing as a hedge along the common boundary between 20 and 20A Chilton Parade, Warrawee.
2) That the Respondent repair the brick wall located along the common boundary between 20 and 20A Chilton Parade, Warrawee to make it structurally sound.
3) That the Respondent pay for the full cost of the replacement fence between 20 and 20A Chilton Parade, Warrawee.
4) That the Respondent pay compensation for the damage caused to 20 Chilton Parade, Warrawee caused by the dividing fence falling onto the dwelling house located on 20 Chilton Parade, Warrawee, and the damage caused to the Applicant's retaining wall by the previous fencing contractor engaged by the Respondent.
5) Note: This application is made with the intention of transferring NCAT proceedings to the Land and Environment Court under section 13A of the Dividing Fences Act 1991.
2. The applicant's compensation claims are set out at Question 14 of Form H (in Exhibit A):
* Repair of roof, gutter, facde and gutter: $5,280
* Removal and replacement of retaining wall: $29,150
* Install Colorbond fence 1.8m high, 11 m long: $5,390
* Cost of preparation of expert report by Catriona Mackenzie and initial site visit...
* Cost of finalisation of expert report by Catriona Mackenzie...
* Cost of preparation of structural engineering report by Jie Yang...
* Cost of surveying 20 Chilton Parade...
3. During the hearing, Mr Hannam, Counsel for Ying Xiao, clarified that the applicant does not press the claim for retaining wall damage caused by the respondent's contractor (the second part of order (4) above), nor does she press the costs of reports and surveys. The nature of the order sought for repairs to the brick wall on the boundary (at order (2) above) also changed during the hearing.
4. The hearing took place onsite, allowing the Court to inspect the creeping fig, elements of damaged property, and the surrounding environment. Ying Xiao obtained expert reports from Jie Yang, an engineer at Capita Yang Engineering, and Catriona Mackenzie, an arborist at Urban Forestry Australia. Biyun Ying obtained expert reports from John Riad, an engineer at Endeavour Engineering, and Walter Chan, an arborist at Arbor Express. Ying Xiao filed a further statement shortly before the final hearing and clarified the sequence of events contained therein during the hearing.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1975c6deab6e56e3712a3b29)
Disclaimer: Curated by HT Syndication.
