Fu v Leung - [2025] NSWLEC 1067

Land and Environment Court

New South Wales

Medium Neutral Citation: Fu v Leung [2025] NSWLEC 1067
Hearing dates: 16 September 2024
Date of orders: 11 February 2025
Decision date: 11 February 2025
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application to prune the tree is granted.
(2) The applicant is to engage and pay for a suitably qualified and experienced arborist (minimum Australian Qualification Framework (AQF) level 3) with all relevant insurances to prune branches overhanging the applicant’s land to appropriate branch collars near the common boundary. Some final pruning cuts will be above the applicant’s land in order to preserve live, sound ascending branches from which the overhanging branches extend. Other final pruning cuts may be above the respondent’s land. Upon completion of the pruning, the arborists shall remove all debris from the pruning from the respondent’s land.
(3) The works in Order (2) shall be completed within 60 days of the date of these orders and during reasonable daytime working hours.
(4) 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.
(5) The arborists will likely need to access the tree from the respondent’s land. The respondent shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the applicant by email, advising the date and approximate start time.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – significant s 12 considerations – pruning ordered at applicant’s cost

Legislation Cited:
Environmental Planning and Assessment Act 1979
Trees (Disputes between Neighbours) Act 2006
Pt 2: s7, s8, s9 s10, s12
State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 2.3

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4373:2007. Pruning of amenity trees
AS 4970:2009, Protection of tree on development sites
Parramatta Development Control Plan 2023
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Shanlin Fu (Applicant)
Hubert Leung (Respondent)
Representation: S Fu (Self represented) (Applicant)
H Leung (Self represented) (Respondent)

File Number(s): 24/260331
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Since 2008, Hubert Leung, the respondent, has owned and occupied a property in Dundas Valley, which has a large Lemon Scented Gum (Corymbia citriodora) (the tree), growing in the rear yard.
The tree is located about 3 metres (m) from a boundary shared with Mr Leung’s south side neighbour, Shanlin Fu, the applicant. Mr Fu purchased his property before the respondent and leased it to tenants until about 2019. Mr Fu’s existing dwelling was subsequently demolished and replaced. Mr Fu then occupied the new two-storey dwelling, the north side wall of which was located parallel with the common boundary and about 2…

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 Fu v Leung

Details

AGLC: Fu v Leung [2025] NSWLEC 1067
Case: [2025] NSWLEC 1067
Decision Date: 11 February 2025

CaseChat Overview and Summary

Fu initiated legal proceedings against Leung, asserting that a tree on Leung's property had grown to such an extent that its branches were overhanging Fu's land, causing inconvenience and potential damage. The matter was heard and determined in the Local Court of New South Wales.

The primary legal issue before the court was whether Fu had the right to have the tree branches pruned and if so, under what conditions and with what obligations for both parties. The court was required to determine whether the overhanging branches constituted a nuisance and if Fu's request for pruning was reasonable and justifiable.

The court found that the overhanging branches did indeed constitute a nuisance, given the impact on Fu's property and the potential for harm. It concluded that Fu had the right to request the pruning of the branches, but that the process must be carried out in a manner that balanced Fu's rights with Leung's property rights. The court further held that the pruning must adhere to specific industry standards and safety guidelines, and that Leung must provide reasonable access to his property to facilitate the work. The court was careful to ensure that the pruning was conducted in a manner that would not unduly prejudice Leung's ownership and enjoyment of his property.

In summary, the court granted Fu's application to have the overhanging branches pruned, provided that the work was done by a qualified arborist, adhered to the relevant standards, and was completed within a specified timeframe. Leung was required to provide reasonable access to his property for the works to be undertaken.

Orders

Orders of the court

The Court orders:

(1) The application to prune the tree is granted.

(2) The applicant is to engage and pay for a suitably qualified and experienced arborist (minimum Australian Qualification Framework (AQF) level 3) with all relevant insurances to prune branches overhanging the applicant’s land to appropriate branch collars near the common boundary. Some final pruning cuts will be above the applicant’s land in order to preserve live, sound ascending branches from which the overhanging branches extend. Other final pruning cuts may be above the respondent’s land. Upon completion of the pruning, the arborists shall remove all debris from the pruning from the respondent’s land.

(3) The works in Order (2) shall be completed within 60 days of the date of these orders and during reasonable daytime working hours.

(4) 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.

(5) The arborists will likely need to access the tree from the respondent’s land. The respondent shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the applicant 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:	Fu v Leung [2025] NSWLEC 1067
Hearing dates:	16 September 2024
Date of orders:	11 February 2025
Decision date:	11 February 2025
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application to prune the tree is granted. (2) The applicant is to engage and pay for a suitably qualified and experienced arborist (minimum Australian Qualification Framework (AQF) level 3) with all relevant insurances to prune branches overhanging the applicant’s land to appropriate branch collars near the common boundary. Some final pruning cuts will be above the applicant’s land in order to preserve live, sound ascending branches from which the overhanging branches extend. Other final pruning cuts may be above the respondent’s land. Upon completion of the pruning, the arborists shall remove all debris from the pruning from the respondent’s land. (3) The works in Order (2) shall be completed within 60 days of the date of these orders and during reasonable daytime working hours. (4) 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. (5) The arborists will likely need to access the tree from the respondent’s land. The respondent shall provide all reasonable access to his property for undertaking the works upon receipt of at least 72 hours’ notice from the applicant by email, advising the date and approximate start time.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to dwelling roof – significant s 12 considerations – pruning ordered at applicant’s cost
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes between Neighbours) Act 2006 Pt 2: s7, s8, s9 s10, s12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2, Pt 2.3
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4373:2007. Pruning of amenity trees AS 4970:2009, Protection of tree on development sites Parramatta Development Control Plan 2023 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Shanlin Fu (Applicant) Hubert Leung (Respondent)
Representation:	S Fu (Self represented) (Applicant) H Leung (Self represented) (Respondent)
File Number(s):	24/260331
Publication restriction:	Nil