Chan v McDonald

[2018] NSWLEC 1692

Land and Environment Court

New South Wales

Medium Neutral Citation:	Chan v McDonald [2018] NSWLEC 1692
Hearing dates:	19 September 2018
Date of orders:	03 January 2019
Decision date:	19 December 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [28].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree is principally on adjoining land – applicants directed to obtain a survey plan – who owns the tree – actions that have contributed to damage and risk of damage or injury – what orders are required – who should pay
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Awad v Hardie [2010] NSWLEC 1213 Awad v Hardie (No 2) [2010] NSWLEC 1258 Black v Johnson (No 2) [2007] NSWLEC 513 Dive v Lin & anor [2017] NSWLEC 1348 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Category:	Principal judgment
Parties:	Chiu Joseph Chan (First Applicant) Tsun Ying Chan (Second Applicant) Colin McDonald (Respondent)
Representation:	CJ & TY Chan, litigants in person (Applicants) C McDonald (Respondent)
File Number(s):	182191 of 2018
Publication restriction:	Nil

Judgment

Background

1. A large Blackbutt (Eucalyptus pilularis) grows on private property in the northern Sydney suburb of Pymble. Such trees are common in the area, contributing to both the local ecological community and the landscape character of this residential area.

2. Over the many years since the tree began growing here, preceding the current occupants of the surrounding dwellings, it has grown to a substantial size, its broad canopy reaching almost 30 metres above the dwellings and its stem now some 1.2 metres in diameter.

3. The tree appears to straddle a common boundary. To the southwest, Colin McDonald (‘the respondent’) has most recently lived at his property for some years, although it has been in his family much longer and he lived here when he was first born. To the northeast, Chiu Joseph and Tsun Ying Chan (‘the applicants’) have owned their property since 2009. They developed their property in 2017, building a new dwelling and adding a smaller granny flat close to, and beneath the canopy of, the Blackbutt (‘the tree’).

4. Periodically, branches have fallen from the tree. One such branch recently broke tiles on the roof of the Chans’ granny flat. The Chans and Mr McDonald could not agree on who should be responsible for carrying out works to the tree. Mr Chan applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the tree to be inspected and pruned at Mr McDonald’s expense, and for $330 compensation for repairs to their roof.

5. The hearing took place onsite, allowing observations of the tree and its surroundings. Bringing my own arboricultural expertise and experience to the matter, I visually inspected the tree from the ground.

6. The application was made in Mr Chan’s name, but any orders might affect both owners of the property, so his wife Tsun Ying…