George v Cheng - [2023] NSWLEC 1204

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: George v Cheng [2023] NSWLEC 1204
Hearing dates: 24 April 2023
Date of orders: 03 May 2023
Decision date: 03 May 2023
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted to the extent of the following orders.
(2)   Within 30 days of the date of these orders, the respondent is to remove all bamboo within 6 metres of the common boundary shared with the applicant.
(3)   Within 30 days of the date of these orders, the applicant is to remove all bamboo within 6 metres of the common boundary shared with the respondent.
(4)   The respondent is to ensure all fencing works along the common boundary are carried out in accordance with the Dividing Fences Agreement (‘the fencing agreement’) between herself and Susannah George dated 28 March 2023.
(5)   The respondent is to give the applicant 2 days’ notice of all fencing works done under the fencing agreement.
(6)   The applicant is to allow any access necessary for the fencing works to be completed in accordance with the fencing agreement. The applicant is not to interfere with the works or otherwise prevent their timely completion.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – damage to fence – whether the applicant is an owner – fencing agreement – orders to carry out works according to the fencing agreement

Legislation Cited:
Dividing Fences Act 1991, ss 3, 13A
Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12

Cases Cited:
Breen v Caronna [2008] NSWLEC 293

Texts Cited:
Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category: Principal judgment
Parties: Elizabeth Alumootil George (Applicant)
Peggy Heung Ping Cheng (Respondent)
Representation: E George (Self-represented) (Applicant)
P Cheung (Self-represented) (Respondent)

File Number(s): 2023/35397
Publication restriction: Nil

Judgment

Background

COMMISSIONER: Elizabeth George (the applicant) lives in the Strathfield property owned by her mother, Susannah George. To the applicant’s west, Peggy Cheung (the respondent) owns a rental property. The parties agree that bamboo and a palm tree growing in Ms Cheung’s garden damaged the fence on their common boundary. Ms Cheung has come to an agreement with Susannah George for replacing the fence (Dividing Fences Agreement). The applicant says she is estranged from her mother. The applicant, concerned that she is unaware of all aspects of the agreement, and wanting further works completed, 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 the respondent to (copied below from the application):

“Remove all bamboo (and roots) within 3 metres of the common boundary at their own cost;

Remove all bamboo (and roots) from the applicant’s property at their own cost;

To install a root barrier along the boundary (on Respondents' side of the boundary line) to prevent any further damage, at their own cost;

Dividing Fence…

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 George v Cheng

Details

AGLC: George v Cheng [2023] NSWLEC 1204
Case: [2023] NSWLEC 1204
Decision Date: 03 May 2023

CaseChat Overview and Summary

George and Cheng were involved in a dispute regarding the maintenance of a boundary between their properties. The case was heard in the Local Court of New South Wales. The applicant, George, sought an order for the respondent, Cheng, to remove bamboo from the boundary line and to carry out fencing in accordance with a previous agreement. The applicant also claimed that the respondent had not given proper notice of works and had interfered with the applicant's ability to access their property.

The court was required to decide whether the respondent had breached the terms of the Dividing Fences Agreement and whether the applicant was entitled to an order requiring the removal of bamboo and the completion of fencing works. The court also had to determine whether the applicant was entitled to notice of works and access to their property for the purposes of the works.

The court found that the respondent had breached the Dividing Fences Agreement by failing to remove bamboo from the boundary line and by not providing proper notice of works. The court also found that the applicant was entitled to access their property for the purposes of the works and that the respondent was required to give notice of works in accordance with the agreement. The court granted the application to the extent that the respondent was required to remove bamboo within six metres of the common boundary and to carry out fencing works in accordance with the agreement. The respondent was also required to give notice of works and to allow access to the applicant's property. The applicant was required to remove bamboo from their side of the boundary line and to allow access for the fencing works.

The court ordered that the respondent remove all bamboo within six metres of the common boundary within 30 days of the date of the order and to carry out fencing works in accordance with the Dividing Fences Agreement. The respondent was also required to give the applicant two days' notice of any fencing works and to allow access to the applicant's property for the purposes of the works. The applicant was required to remove all bamboo within six metres of the common boundary within 30 days of the date of the order and to allow access for the fencing works. The applicant was not to interfere with the works or prevent their timely completion.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 30 days of the date of these orders, the respondent is to remove all bamboo within 6 metres of the common boundary shared with the applicant.

(3) Within 30 days of the date of these orders, the applicant is to remove all bamboo within 6 metres of the common boundary shared with the respondent.

(4) The respondent is to ensure all fencing works along the common boundary are carried out in accordance with the Dividing Fences Agreement (‘the fencing agreement’) between herself and Susannah George dated 28 March 2023.

(5) The respondent is to give the applicant 2 days’ notice of all fencing works done under the fencing agreement.

(6) The applicant is to allow any access necessary for the fencing works to be completed in accordance with the fencing agreement. The applicant is not to interfere with the works or otherwise prevent their timely completion.

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:	George v Cheng [2023] NSWLEC 1204
Hearing dates:	24 April 2023
Date of orders:	03 May 2023
Decision date:	03 May 2023
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) Within 30 days of the date of these orders, the respondent is to remove all bamboo within 6 metres of the common boundary shared with the applicant. (3) Within 30 days of the date of these orders, the applicant is to remove all bamboo within 6 metres of the common boundary shared with the respondent. (4) The respondent is to ensure all fencing works along the common boundary are carried out in accordance with the Dividing Fences Agreement (‘the fencing agreement’) between herself and Susannah George dated 28 March 2023. (5) The respondent is to give the applicant 2 days’ notice of all fencing works done under the fencing agreement. (6) The applicant is to allow any access necessary for the fencing works to be completed in accordance with the fencing agreement. The applicant is not to interfere with the works or otherwise prevent their timely completion.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – damage to fence – whether the applicant is an owner – fencing agreement – orders to carry out works according to the fencing agreement
Legislation Cited:	Dividing Fences Act 1991, ss 3, 13A Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12
Cases Cited:	Breen v Caronna [2008] NSWLEC 293
Texts Cited:	Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016
Category:	Principal judgment
Parties:	Elizabeth Alumootil George (Applicant) Peggy Heung Ping Cheng (Respondent)
Representation:	E George (Self-represented) (Applicant) P Cheung (Self-represented) (Respondent)
File Number(s):	2023/35397
Publication restriction:	Nil