Dai v Li - [2024] NSWLEC 1412

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Dai v Li [2024] NSWLEC 1412
Hearing dates: 10 April 2024
Date of orders: 22 July 2024
Decision date: 22 July 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
1) The respondents shall engage and pay experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to selectively prune 3 live branches, as follows:
a) The two largest branches growing towards and over the applicant’s land, one of which is approximately 225mm diameter at the branch collar and the second, which is approximately 170mm diameter at the branch collar.
b) When facing the tree from the respondents’ land, the branch growing from left to right across the middle of the tree with a diameter at the branch collar of approximately 100-120mm.
2) The works in Order 1 shall be completed within 60 days of the date of these orders.
3) Within 14 days of completion of the works in Order 1, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total quantum of the said invoice by Electronic Funds Transfer (EFT).
4) In 2027 and in every third subsequent year, during the month that the works in Order 1 were completed, the respondents shall engage and pay arborists who meet the requirements of Order 1, to selectively prune epicormic regrowth on the tree’s western side by removing weak low lateral branches growing over the applicant’s dwelling while retaining branches growing vertically or along the common boundary.
5) Within 14 days of completion of each occurrence of works in Order 4, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total of the said invoice by EFT.
6) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.
7) The applicant shall provide all reasonable access to his property for undertaking each of the ordered pruning works upon receipt of at least 72 hours’ notice from the respondents by email, advising the date and approximate start time.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – damage caused – apprehension of further damage and injury – leaves falling onto dwelling roof and clogging gutters

Legislation Cited:
Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Gardiner v Bisley [2021] NSWLEC 1176
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:
Safe Work Australia, Guide…

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 Dai v Li

Details

AGLC: Dai v Li [2024] NSWLEC 1412
Case: [2024] NSWLEC 1412
Decision Date: 22 July 2024

CaseChat Overview and Summary

Dai and Li were involved in a dispute before the court regarding the maintenance and pruning of a tree located on the boundary between their respective properties. The applicant, Dai, sought an order compelling the respondents, Li, to prune certain branches of the tree to prevent them from encroaching onto Dai’s property and obstructing sunlight and views from Dai’s dwelling. The legal issues before the court centred on whether the court should compel the respondents to prune the tree in a specific manner and, if so, what the terms of such an order should be. The court had to determine whether the tree posed a risk to Dai’s property and whether the pruning requested by Dai was necessary and proportionate.

The court found that the tree constituted a risk to Dai’s property and that the requested pruning was necessary to mitigate that risk. The court emphasised the importance of maintaining the aesthetic and functional integrity of the tree while addressing the immediate concerns raised by Dai. The court ordered the respondents to engage qualified arborists to prune specific branches of the tree, ensuring that the works were carried out in a safe and compliant manner. The court also stipulated the schedule for future pruning to maintain the tree’s health and to prevent further encroachment onto Dai’s property. Additionally, the court ordered a financial arrangement for reimbursement of the costs associated with the pruning works.

The court concluded that the order was necessary to protect Dai’s property and ensure the safety and wellbeing of the residents. The court’s decision was aimed at achieving a balance between the rights of both parties and the need to maintain a healthy and safe environment. The court’s orders were designed to address the immediate concerns while also providing a long-term solution for the maintenance of the tree. The court’s decision provided clear guidelines for the respondents to follow and established a framework for future interactions between the parties regarding the tree.

Orders

Orders of the court

The Court orders that:

1) The respondents shall engage and pay experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to selectively prune 3 live branches, as follows:

a) The two largest branches growing towards and over the applicant’s land, one of which is approximately 225mm diameter at the branch collar and the second, which is approximately 170mm diameter at the branch collar.

b) When facing the tree from the respondents’ land, the branch growing from left to right across the middle of the tree with a diameter at the branch collar of approximately 100-120mm.

2) The works in Order 1 shall be completed within 60 days of the date of these orders.

3) Within 14 days of completion of the works in Order 1, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total quantum of the said invoice by Electronic Funds Transfer (EFT).

4) In 2027 and in every third subsequent year, during the month that the works in Order 1 were completed, the respondents shall engage and pay arborists who meet the requirements of Order 1, to selectively prune epicormic regrowth on the tree’s western side by removing weak low lateral branches growing over the applicant’s dwelling while retaining branches growing vertically or along the common boundary.

5) Within 14 days of completion of each occurrence of works in Order 4, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total of the said invoice by EFT.

6) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours.

7) The applicant shall provide all reasonable access to his property for undertaking each of the ordered pruning works upon receipt of at least 72 hours’ notice from the respondents by email, advising the date and approximate start time.

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:	Dai v Li [2024] NSWLEC 1412
Hearing dates:	10 April 2024
Date of orders:	22 July 2024
Decision date:	22 July 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: 1) The respondents shall engage and pay experienced Australian Qualification Framework (AQF) level 3 arborists, with all appropriate insurances (the arborists), to selectively prune 3 live branches, as follows: a) The two largest branches growing towards and over the applicant’s land, one of which is approximately 225mm diameter at the branch collar and the second, which is approximately 170mm diameter at the branch collar. b) When facing the tree from the respondents’ land, the branch growing from left to right across the middle of the tree with a diameter at the branch collar of approximately 100-120mm. 2) The works in Order 1 shall be completed within 60 days of the date of these orders. 3) Within 14 days of completion of the works in Order 1, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total quantum of the said invoice by Electronic Funds Transfer (EFT). 4) In 2027 and in every third subsequent year, during the month that the works in Order 1 were completed, the respondents shall engage and pay arborists who meet the requirements of Order 1, to selectively prune epicormic regrowth on the tree’s western side by removing weak low lateral branches growing over the applicant’s dwelling while retaining branches growing vertically or along the common boundary. 5) Within 14 days of completion of each occurrence of works in Order 4, the respondents shall email the applicant a paid copy of the arborist’s invoice. Within 7 days of receipt of such paid copy of the arborist’s invoice, the applicant shall reimburse the respondents 30% of the total of the said invoice by EFT. 6) All pruning shall comply with AS4373:2007, Pruning of amenity trees, and the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 and shall be completed during reasonable daytime working hours. 7) The applicant shall provide all reasonable access to his property for undertaking each of the ordered pruning works upon receipt of at least 72 hours’ notice from the respondents by email, advising the date and approximate start time.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – damage caused – apprehension of further damage and injury – leaves falling onto dwelling roof and clogging gutters
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Gardiner v Bisley [2021] NSWLEC 1176 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	Safe Work Australia, Guide…