Chan v So - [2025] NSWLEC 1723

Land and Environment Court

New South Wales

Medium Neutral Citation: Chan v So [2025] NSWLEC 1723
Hearing dates: 29 January and June 6 2025
Date of orders: 02 October 2025
Decision date: 02 October 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 qualified arborists with all appropriate insurances (contractors) to remove T1 to near ground level and grind or poison the stump to prevent regrowth and remove debris via the respondents’ property, within 60 days of the date of these orders.
(2) The respondents shall engage and pay contractors to remove or prune the trees comprising T2 sufficiently regularly to maintain clearance of at least 0.5m between the trees comprising T2 and the applicants’ electricity service wires at all times.
(3) The applicants shall allow reasonable access for contractors to remove light branches and debris that inadvertently falls from T1 into the applicants’ property during removal of T1 and remove all pruning debris from T2 from the applicants’ property, upon receipt of at least 72 hours’ notice from the respondents.
(4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, all pruning works shall also comply with AS 4373:2007, Pruning of amenity trees, and all works shall be completed during reasonable, daytime hours.
(5) Within 45 days of the date of these orders, the applicants, at their expense, shall procure repair or replacement specifications for the section of the wall north of the vertical crack, produced and certified as a safe solution by a qualified, registered structural engineer, and distribute same to both respondent parties.
(6) Within 90 days of the date of these orders, each party shall procure and exchange one quotation for repair or replacement of the wall north of the vertical crack from a licenced, insured builder (the builder), based on the certified specification from the structural engineer, and select one of the builders to undertake the wall works. If the parties cannot agree on a builder, the cheapest quotation shall be chosen.
(7) The applicants shall engage and pay the selected builder to repair or replace the wall section north of the vertical crack per the structural engineer’s specifications. The wall works shall be completed within 270 days of the date of these orders. Within 7 days of completion, the applicants shall email the two respondent parties an itemised paid receipt for the wall works.
(8) Within 7 days of receipt of the said itemised paid receipt, each of the respondent parties shall pay the applicants 1/3 of the total of the receipt by electronic funds transfer (EFT).
(9) If the wall works are not completed within 270 days of the date of these orders, order (8) shall lapse.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –compromised tree overhanging applicants’ land – nuisance caused by falling debris – wall damaged by tree – apprehension of additional damage and risk of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v So

Details

AGLC: Chan v So [2025] NSWLEC 1723
Case: [2025] NSWLEC 1723
Decision Date: 02 October 2025

CaseChat Overview and Summary

Chan v So concerned the neighbours’ trees, which were causing damage to the applicants’ property. The respondents were ordered to engage qualified arborists to remove and maintain the trees in such a way as to prevent any future damage. The applicants were ordered to allow access to their property for the tree works and to procure and distribute specifications for the repair or replacement of the damaged section of the wall. The parties were ordered to procure quotations from builders, and if they could not agree on which builder to use, the cheapest quotation was to be selected. The applicants were ordered to engage the chosen builder to repair or replace the wall, and the respondents were ordered to pay one-third of the cost of the wall works. If the wall works were not completed within 270 days, the respondents’ obligation to pay one-third of the cost of the wall works lapsed.

The Court was required to determine the legal issues of whether the respondents’ trees were causing damage to the applicants’ property, and if so, what orders should be made to prevent any future damage and repair any existing damage. The Court was also required to determine the appropriate allocation of the cost of the wall works between the parties.

The Court found that the respondents’ trees were causing damage to the applicants’ property and ordered the respondents to engage qualified arborists to remove and maintain the trees. The Court also found that the applicants were responsible for procuring and distributing the specifications for the repair or replacement of the damaged section of the wall, and that the parties should procure quotations from builders. The Court ordered the applicants to engage the chosen builder to repair or replace the wall, and ordered the respondents to pay one-third of the cost of the wall works. The Court found that if the wall works were not completed within 270 days, the respondents’ obligation to pay one-third of the cost of the wall works lapsed.

Orders

Orders of the court

The Court orders that:

(1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 qualified arborists with all appropriate insurances (contractors) to remove T1 to near ground level and grind or poison the stump to prevent regrowth and remove debris via the respondents’ property, within 60 days of the date of these orders.

(2) The respondents shall engage and pay contractors to remove or prune the trees comprising T2 sufficiently regularly to maintain clearance of at least 0.5m between the trees comprising T2 and the applicants’ electricity service wires at all times.

(3) The applicants shall allow reasonable access for contractors to remove light branches and debris that inadvertently falls from T1 into the applicants’ property during removal of T1 and remove all pruning debris from T2 from the applicants’ property, upon receipt of at least 72 hours’ notice from the respondents.

(4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, all pruning works shall also comply with AS 4373:2007, Pruning of amenity trees, and all works shall be completed during reasonable, daytime hours.

(5) Within 45 days of the date of these orders, the applicants, at their expense, shall procure repair or replacement specifications for the section of the wall north of the vertical crack, produced and certified as a safe solution by a qualified, registered structural engineer, and distribute same to both respondent parties.

(6) Within 90 days of the date of these orders, each party shall procure and exchange one quotation for repair or replacement of the wall north of the vertical crack from a licenced, insured builder (the builder), based on the certified specification from the structural engineer, and select one of the builders to undertake the wall works. If the parties cannot agree on a builder, the cheapest quotation shall be chosen.

(7) The applicants shall engage and pay the selected builder to repair or replace the wall section north of the vertical crack per the structural engineer’s specifications. The wall works shall be completed within 270 days of the date of these orders. Within 7 days of completion, the applicants shall email the two respondent parties an itemised paid receipt for the wall works.

(8) Within 7 days of receipt of the said itemised paid receipt, each of the respondent parties shall pay the applicants 1/3 of the total of the receipt by electronic funds transfer (EFT).

(9) If the wall works are not completed within 270 days of the date of these orders, order (8) shall lapse.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chan v So [2025] NSWLEC 1723
Hearing dates:	29 January and June 6 2025
Date of orders:	02 October 2025
Decision date:	02 October 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) The respondents shall engage and pay Australian Qualification Framework (AQF) level 3 qualified arborists with all appropriate insurances (contractors) to remove T1 to near ground level and grind or poison the stump to prevent regrowth and remove debris via the respondents’ property, within 60 days of the date of these orders. (2) The respondents shall engage and pay contractors to remove or prune the trees comprising T2 sufficiently regularly to maintain clearance of at least 0.5m between the trees comprising T2 and the applicants’ electricity service wires at all times. (3) The applicants shall allow reasonable access for contractors to remove light branches and debris that inadvertently falls from T1 into the applicants’ property during removal of T1 and remove all pruning debris from T2 from the applicants’ property, upon receipt of at least 72 hours’ notice from the respondents. (4) All tree works shall comply with Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016, all pruning works shall also comply with AS 4373:2007, Pruning of amenity trees, and all works shall be completed during reasonable, daytime hours. (5) Within 45 days of the date of these orders, the applicants, at their expense, shall procure repair or replacement specifications for the section of the wall north of the vertical crack, produced and certified as a safe solution by a qualified, registered structural engineer, and distribute same to both respondent parties. (6) Within 90 days of the date of these orders, each party shall procure and exchange one quotation for repair or replacement of the wall north of the vertical crack from a licenced, insured builder (the builder), based on the certified specification from the structural engineer, and select one of the builders to undertake the wall works. If the parties cannot agree on a builder, the cheapest quotation shall be chosen. (7) The applicants shall engage and pay the selected builder to repair or replace the wall section north of the vertical crack per the structural engineer’s specifications. The wall works shall be completed within 270 days of the date of these orders. Within 7 days of completion, the applicants shall email the two respondent parties an itemised paid receipt for the wall works. (8) Within 7 days of receipt of the said itemised paid receipt, each of the respondent parties shall pay the applicants 1/3 of the total of the receipt by electronic funds transfer (EFT). (9) If the wall works are not completed within 270 days of the date of these orders, order (8) shall lapse.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –compromised tree overhanging applicants’ land – nuisance caused by falling debris – wall damaged by tree – apprehension of additional damage and risk of…