Dai v Lam Family Holdings Pty Ltd

[2024] NSWLEC 1593

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dai v LAM Family Holdings Pty Ltd [2024] NSWLEC 1593

Hearing dates:

20 August 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –whether the application was served on the respondent – whether neighbouring trees have caused damage – property maintenance – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Category:

Principal judgment

Parties:

Wu Long Dai (Applicant)
LAM Family Holdings Pty Ltd (Respondent)

Representation:

Counsel:
W L Dai (Self-represented) (Applicant)
No appearance (Respondent)

File Number(s):

2024/14702

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Wu Long Dai (the applicant) lives at 36 Oxford Street, Burwood. He has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for a neighbouring tree to be removed or pruned. The tree is on the adjoining property belonging to LAM Family Holdings Pty Ltd (the respondent).

2. The hearing took place onsite, allowing the Court to view the tree and both properties. Mr Dai was self-represented. The respondent did not appear. I bring my own arboricultural expertise to this decision.

Mr Dai applied to the Court

3. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), Mr Dai applied to the Court for orders to remedy, restrain or prevent damage to his property, or injury to any person, as a consequence of a tree on adjoining land. His application sought orders relating to only one tree. It is unclear from the application if he sought orders for pruning the tree or for removing it entirely, but he included a copy of a quote for its removal. The Court can make orders for tree pruning or tree removal (s 9 of the Trees Act). The Court is not obliged to make those orders, but may make orders “as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person” as a consequence of the subject trees (s 9(1)).

4. At the onsite hearing Mr Dai explained that he sought orders for three trees. Because the application was not amended to reflect this, the Court cannot make orders for the other two trees, but I comment on them below for Mr Dai’s benefit.

Whether the application was served on the respondent

5. Some time after the scheduled start of the hearing, with only Mr Dai present at the hearing, I spoke on the phone with Ms Carol Lam, listed as the respondent’s representative. She explained that she was unaware of the proceedings and of the scheduled hearing. This seemed contrary to the material on the Court’s file, so the hearing proceeded ex parte.

6. Mr Dai’s original application listed Ms Lam as the adjoining property owner and the respondent. He subsequently amended the application to list LAM Family Holdings Pty Ltd as the respondent. Documents in Exhibit B show that Ms Lam is the director, secretary and sole shareholder of the respondent.

7. Senior Deputy Registrar Holm made orders on 12 March 2024 for Mr Dai to serve the application and claim details, along with a copy of Registrar’s orders, on the respondent by posting them via Express Post to the respondent’s registered address. The Applicant was also ordered to provide evidence of such service by 19 March 2024. Order 6 made by Holm SDR on 12 March 2024 stated that service on the respondent was taken to be effected once this was completed. Holm SDR noted at the end of the orders:

“a) The Court expects that the Respondent appear at the directions hearing on 2 April 2024 and to set the matter down for hearing.

b) If the Respondent does not appear on the next occasion the Court may set the matter down for hearing in the Respondent's absence.

c) The Court will send a notice of orders to the Respondent at its registered address.”

8. Mr Dai provided a copy of the receipt for posting the documents via Express Post as per the Court’s orders. He also provided a copy of a letter from Strathfield Partners Real Estate, the manager of the respondent’s property, acknowledging receipt of the documents. I am satisfied that Mr Dai has fulfilled his obligations from the Court’s earlier orders and that service on the respondent is now taken to be effected.

Mr Dai made a reasonable effort to reach agreement

9. Correspondence filed with the application demonstrates that Mr Dai made a reasonable effort to reach agreement with the respondent (s 10(1)(a) of the Trees Act). Mr Dai sought mediation through the Community Justice Centres, but the respondent did not respond. The date set down for the final hearing allowed for the required notice of the application (s 10(1)(b)).

The tree

10. The tree in Mr Dai’s application is a fiddlewood (Citharexylum spinosum). It stands on the respondent’s land close to the common boundary. I observed the tree to be healthy and structurally sound.

Whether the tree has caused damage

11. Before making orders, the Court must be satisfied that the tree 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 (s 10(2) of the Trees Act).

12. The tree’s branches extend past the common boundary and overhang an outbuilding at the back of Mr Dai’s property. Mr Dai claims that the tree has damaged the building. Debris including leaves and twigs build up on the roof, blocking gutters and causing water to leak into the building. Branches have fallen and damaged the roof, allowing water to enter and damage the building. Mr Dai explained that he is now too old to be getting up onto the roof to clear it of debris.

13. I observed fallen branches and debris on the roof. The branches were small dead branches that do not appear to have caused damage. The amount of debris indicated that the roof had not been cleared for a considerable time.

14. Mr Dai showed me water damage inside the building. Containers were placed to catch dripping water. The building is old, poorly built and extremely dilapidated. Its condition is due to its poor quality and lack of maintenance. The building’s condition is unlikely to be significantly different were there no tree overhanging it.

15. I am not satisfied that the tree has caused any damage to Mr Dai’s building. If some damage can be contributed to the debris build-up on the roof, I would not make any orders on that basis as the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20] would apply here:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

Whether the tree is likely to cause damage or injury

16. Based on my observations from the ground, the tree is without significant structural defects, so large branches are unlikely to fall. Small branches and other debris will continue to fall onto the roof of Mr Dai’s outbuilding, but these are unlikely to directly cause damage. Any damage resulting from blocked gutters and the like can be avoided with reasonable property maintenance.

17. Mr Dai expressed concern that branches might cause injury to family members. This seems unlikely considering that only small branches are likely to fall, and they are most likely to fall onto the roof of the outbuilding.

18. I am not satisfied that the tree is likely to cause damage or injury.

19. It follows that the Court cannot make orders in these proceedings.

Other trees

20. At the onsite hearing, Mr Dai asked the Court to make orders for two other trees on the respondent’s land: a jacaranda and a cocos palm. Both of these trees stand further from the common boundary with less overhang than the fiddlewood of Mr Dai’s property, and are less likely than the fiddlewood to cause damage or injury. Had they been included in the application, I see no reason why orders would have been made for those trees.

21. Mr Dai’s application included a copy of a tree permit from Burwood Council. The permit allowed pruning of branches of the respondent’s trees overhanging Mr Dai’s property. The permit expired on 2 February 2024. Should Mr Dai wish to prune the trees, he could apply to Burwood Council for a new permit and then engage an arborist to carry out any permitted works.

Orders

22. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 26 September 2024