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[2025] NSWLEC 1417
General information, not legal advice.
Land and Environment Court (NSW)
2025-06-13
Galwey AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Xiao v Ying [2025] NSWLEC 1417
Hearing dates: 17 February 2025
Date of orders: 13 June 2025
Decision date: 13 June 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision: The Court orders:
(1) The application is upheld to the extent of these orders.
(2) Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified person to carry out the remedial works to the southernmost part of the parties’ masonry dividing fence as specified in Annexure A.
(3) On reasonable notice, the applicant is to allow all access for the works in Order (2) during reasonable hours of the day.
(4) Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent three quotes for the erection of a replacement timber paling fence by a suitably qualified fencing contractor. The quotes are to:
(a) be for the full extent of the shared boundary between the in-situ masonry walls where there is presently no dividing fence (approximately 11 metres in length);
(b) include a method for construction of the fence to ensure it is structurally sound and results in no further damage to the retaining wall. The construction method should include to be constructed on fence posts embedded into natural ground with concrete piers, in the same position as where the previous timber dividing fence was situated, additionally anchored to the side wall of 20A Chilton Parade’s existing platform to ensure structural integrity if necessary;
(c) be for a fence constructed to a finished height of 1800mm above the existing 20A Chilton Parade platform level/slope level along the shared boundary line (see Annexure B); and
(d) comply with any requirements of a construction certificate, if one is required (see Orders (5)–(7) below).
(5) If development consent is required for the new fence, within 60 days of the date of these orders, the applicant is to lodge a development application seeking development consent for:
(a) the erection of a replacement timber paling fence (approximately 11 metres in length) in accordance with the works specified in Order (4);
(b) removal of gas, electrical wires and water pipes if necessary; and
(c) any works required for the installation of supporting posts.
(6) On the assumption that development consent in Order (5) is granted, the applicant is to engage a principal certifier and obtain a construction certificate for the works approved under the development consent within 30 days of the grant of consent.
(7) The respondent is to provide and not withhold owner’s consent for any applications or forms required to obtain development consent and a construction certificate for the above works.
(8) Within 90 days of the date of these orders, the parties are to engage an independent, suitably qualified fencing contractor to carry out the works specified in order (4), in accordance with one of the three quotations provided under order (4). If the parties cannot agree on the selection of a quote, they are to proceed with the middle-priced quote.
(9) The applicant and the respondent are to each pay 50% of the cost of the fencing works in Order (8).
(10) Within 7 days of the receipt of an itemised costs account and paid tax invoices for the works in Order (2), the applicant is to reimburse the respondent 50% of the cost of those works.
(11) Within 7 days of the receipt of an itemised costs account and paid tax invoices for the costs of complying with Orders (5)–(7), the respondent is to reimburse the applicant 50% of those costs.
(12) The respondent is to take all reasonable steps necessary to prevent the creeping fig causing damage to any part of the dividing fence in future.
(13) The parties are granted liberty to relist should they be unable to comply with these orders within the specified timeframes.
(14) The exhibits are retained.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – creeping fig – whether the tree is on adjoining land – damage to property – damage to dividing fence – whether tree removal is required – orders for fencing works
Legislation Cited: Dividing Fences Act 1991, s 13A
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12
Trees (Disputes Between Neighbours) Regulation 2024, s 4
Cases Cited: Awad v Hardie [2010] NSWLEC 1213
Texts Cited: Ku-ring-gai Development Control Plan 2024
Category: Principal judgment
Parties: Ying Xiao (Applicant)
Biyun Ying (Respondent)
Representation: Counsel:
A Hannam (Applicant)
C Koikas (Respondent)
Maddocks (Applicant)
Bannermans Lawyers (Respondent)
File Number(s): 2024/301322
Publication restriction: No
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:
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.
That the Respondent repair the brick wall located along the common boundary between 20 and 20A Chilton Parade, Warrawee to make it structurally sound.
That the Respondent pay for the full cost of the replacement fence between 20 and 20A Chilton Parade, Warrawee.
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.
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.
The applicant’s compensation claims are set out at Question 14 of Form H (in Exhibit A):
Repair of roof, gutter, façade 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…
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.
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.
Ying Xiao has applied to the Court pursuant to s 7 (Pt 2) of the Trees Act for orders to remedy, restrain or prevent damage to property on her land. She says the creeping fig, which grows on parts of the dividing fence, and grew on other parts until recently, is the respondent’s tree. Pursuant to s 7, a landowner can only apply for orders when the alleged damage is “…a consequence of a tree to which this Act applies that is situated on adjoining land.” The creeping fig covered both sides of the fence.
The orders Ying Xiao seeks are orders the Court can make at s 9 of the Trees Act, although the Court can make other orders as it sees fit.
In certain circumstances, proceedings under the Dividing Fences Act can be transferred to the Land and Environment Court, allowing orders for fencing work to be made in proceedings under the Trees Act beyond the section of fence damaged by a neighbouring tree: s 13A of the Dividing Fences Act. At the applicant’s request, the parties’ NCAT proceedings are transferred to the Land and Environment Court to be determined as part of these proceedings.
Relevant issues to be determined in these proceedings are:
Whether the creeping fig is “situated on adjoining land”: s 7 of the Trees Act.
Whether the applicant made a reasonable effort to reach agreement with the respondent and gave the required notice of the application: s 10(1)(a).
Whether the Court can be satisfied that the creeping fig has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person: s 10(2).
If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?
The creeping fig (Ficus pumila) grows over both sides of the boundary fence within the properties’ front setbacks. Ms Mackenzie found the creeping fig grew on the dividing fence for a length of approximately 23 metres.
The creeping fig’s thick foliage hides it stems, but there is likely more than one individual plant. They all intertwine, forming a continuous mass of foliage along the boundary, and together I refer to them simply as ‘the creeping fig’.
The creeping fig is mature and has grown vigorously, forming a thick barrier on the applicant’s side of the boundary fence. It has been allowed to grow over the fence so that it also forms a barrier of foliage, albeit somewhat thinner, on the respondent’s side of the fence. It has been cut recently at the top where it grew over the top of the fence.
Ms Mckenzie noted, and onsite observations confirmed, that the creeping fig originates from the respondent’s property. The Court found in Awad v Hardie [2010] NSWLEC 1213 at [2]: “…the property upon which the tree is principally located is determined by having regard to the proportions of the tree on each property at the point where the trunk enters the ground on that property.” No stems were found to be emerging from ground on the applicant’s property. It is principally on the respondent’s land (s 4(3) of the Trees Act) and is owned by the respondent. Being a vine, the creeping fig is a tree for the purposes of the Trees Act: see Trees (Disputes Between Neighbours) Regulation 2024 at s 4.
“There has been ongoing contact and mediation between the parties in the NCAT proceedings. Mediation has failed and the matter has been set down for a hearing. Offered further mediation to the Applicant before filing these proceedings and the lawyer acting for the Respondent declined to participate in further mediation.”
10 Matters of which Court must be satisfied before making an order
(1) …
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
The dividing fence relevant to these proceedings is in the properties’ front setbacks, extending roughly from the applicant’s dwelling north to their garage, alongside the respondent’s paved pool surrounds. The dividing fence is in three sections: a timber paling fence to the north (the northern paling fence) approximately 2.5 metres long; a brick wall in the centre approximately 12 metres long; and another timber paling fence at the southern end nearest the dwellings (the southern paling fence) approximately 11 metres long.
Ying Xiao seeks orders for the creeping fig’s removal, but no other orders are sought for the northern paling fence.
Ying Xiao says that the southern paling fence collapsed into her property in April 2023. It fell against part of her dwelling, damaging some roof guttering and roof ridge caps. She submits that the weight of the creeping fig on the fence caused its failure. After it fell, she got a builder to temporarily prop and stabilise the fence, which was later removed.
The fence had been removed by the time of the onsite hearing, and the Court has limited evidence as to the cause of its failure. Ms Mackenzie wrote (par 25 of her report) that the creeping fig’s network of foliage and woody stems appears to have accelerated deterioration of the timber fence that collapsed. Ms Mackenzie referred to photographs in an earlier building report (Civil Property Group’s Property and Timber Pest Report of 2 November 2022) showing parts of the creeping fig growing under, over and between the fence’s horizontal components. The fence was leaning into Ying Xiao’s property and was visibly deteriorating.
Ying Xiao’s own photograph (Figure 7 at Question 4 of Form H, in Exhibit A) shows the fence leaning against her dwelling and supported by the builder’s prop.
Neither Mr Yang nor Mr Riad provided opinion as to the paling fence’s cause of failure.
The photographs described above, along with Ms Mackenzies observations and opinions, are sufficient to persuade me that the creeping fig contributed to the paling fence’s failure. The fence’s age, its design and construction methods may have led to its failure sometime later, but the presence of the creeping fig hastened the deterioration of its timber components, and the creeping fig’s weight hastened its collapse. The Trees Act does not require that the tree be the only cause of damage. That the creeping fig was a cause of damage to the timber paling fence is sufficient to enliven the Court’s power to make orders at s 10(2)(a) of the Trees Act. Orders can be made to remedy the damage and to apportion costs of any works, but only after the Court has considered matters at s 12, which I come to further below.
Ying Xiao claims compensation for repairing her roof and guttering where the fence caused damage when it collapsed. I observed the damage during the onsite view. The elements of damage align with the fence’s position in Ying Xiao’s photograph described above at [20], such that I am satisfied that damage was caused by the fence and, in turn, perhaps by the tree.
Although the creeping fig was a cause of damage to the southern paling fence, other factors contributed to its failure: s 12(h) of the Trees Act. First, the fence’s age and general deterioration, beyond that caused by the creeping fig, contributed to its failure, and significantly so. Second, the creeping fig had covered both sides of the fence for some years. Referring to historic aerial images, Ms Mackenzie reported that the creeping fig appeared well established in 2009. Photographs from the Property and Timber Pest Report of 2 November 2022, prior to the fence’s collapse, show extensive growth of the creeping fig covering the applicant’s side of the paling fence and reaching to her dwelling.
The creeping fig may be rooted in ground on the respondent’s side of the fence, but it appears that the applicant has allowed it to grown and thrive on her side of the fence, perhaps even for her own benefit – it provided an attractive screen for an otherwise unattractive fence. Ying Xiao may have asked Biyun Yung to prune the creeping fig, but I am not satisfied that she presented him with any evidence of damage it was likely to cause. Pruning the creeping fig would fall under the ‘minor pruning’ exemption of Pt 13 of the Ku-ring-gai Development Control Plan 2024 (the DCP), so Ying Xiao may have pruned the creeping fig on her side of the fence had she wished, potentially even removing all growth on her side of the fence. If the creeping fig’s damage to the fence was foreseeable, this is an omission by the applicant that has contributed to the damage. If it was not foreseeable, there was no reason for Biyun Yung to take preventative action prior to the fence’s collapse. For these reasons the parties will bear the costs of remedying damage to their respective properties. They share equally ownership of the dividing fence, so they shall share equally the cost of its replacement. Orders will be made to replace the southern paling fence with the costs shared. As the applicant will be responsible for repairs to her roof and guttering, that does not require orders from the Court.
The brick wall on the boundary, north of the southern paling fence, is also the subject of this application. Mr Yang visually assessed the wall and determined that:
The single-leaf brick wall was not built to required standards and was not constructed to support the weight of the hedge growing upon it.
That further growth of the hedge could increase lateral pressure on the wall, which may cause failure of mortar between bricks, leading to an eventual collapse of the wall.
The wall was hazardous, requiring temporary protection measures to protect the safety of residents on the applicant’s property.
Mr Riad also inspected the wall. His contractor dug three holes on the respondents’ side of the brick wall (par 7.2.3 of his report, in Exhibit 1): “…one at each end and one at the midpoint… to provide a representative assessment of potential root interaction with the brick wall.” He found an additional, undamaged, brick wall beneath the surface. He did not see any roots damaging the boundary brick wall; however, I note that the investigation holes may have been well away from the creeping fig’s stems where they enter the ground, as he did not locate those. Root growth would likely be greatest closest to the stems. Mr Riad concluded that: “The wall remains unaffected by root intrusion, and no structural impact from the hedge was observed.” He thought that the crack in the wall (par 7.3.2) “…may be related to natural soil movement rather than any lateral force from vegetation.”
Both engineers based their conclusions on limited investigations, but I prefer Mr Riad’s findings. He explained his reasons more clearly, and his conclusions more closely correspond with observations and oral evidence during the hearing. My observations confirmed that the wall is not an immediate hazard requiring protection measures, as Mr Yang reported. The parties agreed onsite that the wall is generally in good condition, requiring only the remediation works recommended by Mr Riad.
Mr Riad identified that damage was restricted to the wall’s southern end, requiring only localised remediation, and he provided specifications for the remediation works.
As I have found that the creeping fig damaged the southern paling fence, orders can be made for other sections of the dividing fence: s 13A of the Dividing Fences Act. The test at s 10(2)(a) of the Trees Act need not apply to the brick wall, so the Court can order repairs to this wall without being satisfied that the creeping fig damaged it. However, causation would be relevant to apportioning the cost of the repair works. I find there is insufficient evidence to demonstrate that the creeping fig has damaged the wall. The applicant’s own engineering evidence shows that the wall was not constructed to relevant standards. If the creeping fig contributed to damage, it was a minor factor only. The parties shall share equally the cost of wall repair works.
I asked the parties to provide further information regarding the nature of fencing works. They each sent in proposed consent orders. While it was clear that they had discussed the orders and agreed on some of them, the two versions varied to some extent. I have taken their orders, reconciled their differences, and reshaped them to make them clearer and, hopefully, complete, and to share the cost of all fencing works equally between them. Information in the annexures was also provided by the parties: Annexure A by the respondent and Annexure B by the applicant. I make no order for removing the creeping fig, only for the applicant to prevent it causing damage in future. Ms Mackenzie gave advice in this regard at pars 28–31 of her report. And as I mentioned earlier, the applicant can prune parts of the creeping fig on her side of the boundary as she wishes, where those works fall under the DCP’s ‘minor pruning’ exemption.
The Court orders:
The application is upheld to the extent of these orders.
Within 90 days of the date of these orders, the respondent is to engage and pay for a suitably qualified person to carry out the remedial works to the southernmost part of the parties’ masonry dividing fence as specified in Annexure A.
On reasonable notice, the applicant is to allow all access for the works in Order (2) during reasonable hours of the day.
Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent three quotes for the erection of a replacement timber paling fence by a suitably qualified fencing contractor. The quotes are to:
(a) be for the full extent of the shared boundary between the in-situ masonry walls where there is presently no dividing fence (approximately 11 metres in length); (b) include a method for construction of the fence to ensure it is structurally sound and results in no further damage to the retaining wall. The construction method should include to be constructed on fence posts embedded into natural ground with concrete piers, in the same position as where the previous timber dividing fence was situated, additionally anchored to the side wall of 20A Chilton Parade’s existing platform to ensure structural integrity if necessary; (c) be for a fence constructed to a finished height of 1800mm above the existing 20A Chilton Parade platform level/slope level along the shared boundary line (see Annexure B); and (d) comply with any requirements of a construction certificate, if one is required (see Orders (5)–(7) below).
(a) the erection of a replacement timber paling fence (approximately 11 metres in length) in accordance with the works specified in Order (4); (b) removal of gas, electrical wires and water pipes if necessary; and (c) any works required for the installation of supporting posts.
**********
Annexure A.256 KB.pdf
Annexure B.399 KB.pdf
Correction on Cover sheet
Xiao
Ying [2025] NSWLEC 1417