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此次裹脚布原文如下，
YOUR LETTER
Your letter does not contain a legal justification of your client's claim:
• The Dividing Fences Act (Fences Act) does apply to any determination by the Court whether to order a remedy amounting to me contributing to the cost of
construction/restoration/repair of a dividing fence, regardless of the reason for ordering that remedy
• The suggestion that I access the boundary to contain the bamboo growth by removing the healthy bamboo on my property as shown in the enclosed picture is a destructive approach, as is your suggestion that I remove my five palm trees along the boundary, both contrary to the objectives of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act)
• Your statement that "the common law of nuisance has some relevance" indicates that you are applying outdated law; section 5 of the Trees Act reads "No action may be brought in nuisance as a result of damage caused by a tree"
• Rule 3.7(2) of the L&E Court Rules 2007 prevents a Court order for costs unless it is "fair and reasonable in the circumstances". It is not fair or reasonable that I pay to reinstate the existing wooden fence because:
o I have offered to contain the bamboo growth alongside the boundary
o you have correctly admitted this dividing fence is not damaged
o reinstating this dividing fence will duplicate the taller and superior brushwood fence alongside it since they have a similar appearance, constructed from dead brown wood
o a replacement fence will create a vermin trap which will prevent management of growth
o the vermin trap deters buyers of both properties to avoid future dispute over its upkeep
o your clients will be in a better position if I pay to repair a c.30 year old fence.
None of your letters over two months refer to any section in the Trees Act to justify your clients' claim, wrongly suggesting that you can obtain Court orders to remove all my bamboo and my five palm trees by relying on the law of nuisance, something prohibited by sS of the Trees Act.
TREES ACT
Proper discharge of your duty under Rule 4, to deliver legal services "competently" and to "comply with ... the law" to resolve this dispute requires the following approach under the Trees Act:
Section 4 applies the Act to this dispute, since the bamboo is a tree in a residential zone.
Section 5 prohibits an action in nuisance to resolve this dispute.
Section 7 allows your clients to apply to the Court to remedy damage to property on the land as a consequence of the bamboo. It is telling that your clients have not claimed any such damage, as per your submission that "removal and reinstatement of the existing fence is only an issue because that is your preferred method of treating and containing your invading bamboo". Property damage does not include growth on your clients' property which they can tend to. The Trees Act does not allow your clients to not manage tree growth on their property for ten years then get an order for their neighbour to tend to that growth.
Section 9 allows the Court to "make such orders as it thinks fit to remedy" damage as a consequence of the bamboo, including authorisation for me to enter your clients' property to carry out work. Remedies are to have utility. They are to be proportional to the damage, to put an end to the damage, not to create a new source offuture damage and notto put applicants in a better position.
The Court cannot order a remedy for the growth on your client's property since that is not property damage. Your clients have been best placed to take earlier action to tend to the bamboo growth on their property over the last ten years. They even failed to tell me about the growth near the boundary which they know cannot be seen except from their property. These factors place fault on your clients for not maintaining growth on their property, leaving them without remedy.
If the old wooden fence is removed to allow a barrier to be installed near the boundary, then your clients cannot reasonably claim a remedy for that fence to be reinstated since that fence has no value; this is a conclusion drawn from the following facts:
• your clients had the wooden fence concealed by an old weatherboard structure for ten years
• when the weatherboard blew down two and a half years ago, they refused for 17 months to respond to my current offer to attend their property to contain the growth
• your clients have refused me permission to go on their property to contain the growth, something they are not allowed to do under s20 of the Fences Act.
• the wooden fence duplicates the existing taller and superior brushwood fence running alongside it since both have a similar appearance
• reinstating the fence will create a vermin trap which will prevent management of growth
• reinstating the fence will deter buyers of both properties to avoid future disputes over upkeep of the vermin trap
• reinstating the wooden fence will result in me paying the cost of a new dividing fence to replace one that is c.30 years old.
These facts undermine your clients' claim that this old fence has significant value, hence, its reinstatement cannot be justified as a remedy.
In any event, a determination by the Court whether it should order a remedy that I contribute to the cost of construction/restoration/repair of a dividing fence will deal with a subject specifically covered by the Dividing Fences Act 1991. My letters have referred you to subsection 6(2} "This section applies whether or not a dividing fence already separates the adjoining lands" and to the definition in section 3 of "fencing work" which is "construction, replacement, repair or maintenance of the whole or part of a dividing fence".
he doctrine of "Lex specialis derogate legi genera Ii" requires that the Fences Act, being a law governing a specific subject matter, override the Trees Act when considering an order for a remedy to contribute to the cost of construction/restoration/repair of a dividing fence.
The doctrine is affirmed in section 33 of the Interpretation Act 1987 which requires a construction of an Act "that would promote the purpose or object underlying the Act'' i.e. for an Act to deal with its subject matter but not to the extent that it deals with the subject matter of another Act which specifically deals with that subject matter ..
The factors in s4 of the Fences Act do not justify another dividing fence on this boundary was explained in my letter of 2 March 2021.
Section 12 requires the Court to consider the following matters before determining your client's application to remove my bamboo and five palm trees:
b3)- my privacy: your client's house has a balcony which is about five metres from the boundary, which give your clients a view my swimming pool, the whole of my backyard, all the way to the patio as shown in the attached picture. This was the reason for planting the bamboo, to provide a screen to give me privacy from the intrusion of your client's balcony
(d) - biodiversity: there is no other house in the vicinity to my knowledge with a substantial bamboo presence, the area thereby benefits by the variety-Of vegetation I have introduced
(e) - scenic value: Willoughby Council area is known for its green canopy and the bamboo creates a screen in amongst five palm trees. That screen extends about nine metres in length and 15 metres in height, which creates an aesthetic which cannot be matched by a hedge
(h) - act or omission by your clients which has caused damage to their property: there is no damage to your client's property, as correctly admitted by you. Your clients have been in the best position to have taken earlier action to manage the bamboo growth on their property over the last ten years. Instead, your clients have failed to carry out their legal responsibility under the Tress Act to tend the growth on their property, they have failed to maintain the old wooden fence on the boundary and failed to alert me to the growth while knowing that the growth was not visible from my property, exacerbating the level of work needed to tend to the growth on their property.
CONCLUSION
I hope that the above submissions as well as my letter of 2 March 2021 assist in understanding the law which applies to this dispute. That law does not provide grounds for a remedy that I either:
• tend to your client's garden for them
• remove healthy bamboo on my property to access the boundary to contain its growth
• pay for construction/restoration/repair of the old wooden dividing fence.
Section 9 of the Trees Act and section 20 of the Fence Act affirm my right to apply for a Court order to enter your clients' property to carry out agreed work to contain the bamboo; I have arranged for inspection of your clients' property in their company about five times without incident so there is no reason for their objection. The offer in my letter of 2 March 2021 remains open for acceptance.
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自己动手之铺草坪篇 (2009-1-6) 涵妈妈 
楼主:Jasmin365
发表于 2021-3-29 00:41
