Golden v Li

[2021] NSWLEC 1751

Land and Environment Court

New South Wales

Medium Neutral Citation:

Golden v Li [2021] NSWLEC 1751

Hearing dates:

2 December 2021

Date of orders:

2 December 2021

Decision date:

02 December 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to tennis court and retaining wall – debris falling from tree – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Ku-ring-gai Development Control Plan 2021

Category:

Principal judgment

Parties:

Patrick Golden (Applicant)
Bin Li (First Respondent)
Jing Zhang (Second Respondent)

Representation:

Counsel:
P Golden (Litigant in Person) (Applicant)
G Kwong (Solicitor) (Respondents)

Solicitors:
Ma & Company Solicitors (Respondents)

File Number(s):

2021/261515

Publication restriction:

No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

1. A tennis court covers most of the land between the side boundaries in the rear part of a Turramurra property belonging to Patrick Golden (‘the applicant’). Along its south-western side, the tennis court reaches the side boundary shared with Mr Golden’s neighbours, Bin Li and Jing Zhang (‘the respondents’). On the respondents’ property, a Queensland Brush Box (Lophostemon confertus) (‘the tree’) is approximately 4 metres from this common boundary. A low retaining wall, apparently on or close to the common boundary, supports the slightly-higher land on the respondents’ property.

2. Mr Golden 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 respondents to remove the tree or, failing that, for overhanging branches to be pruned back to the boundary. Mr Golden alleges that tree roots are damaging the retaining wall, and debris is damaging the tennis court.

Framework for this decision

3. Before making orders, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree’s owners (s 10(1)(a) of the Trees Act).

4. Under Pt 2 of the Trees Act, the Court can only make orders if satisfied that the tree concerned 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 to any person (s 10(2) of the Trees Act). The Court must consider a range of matters at s 12 of the Trees Act before making orders as it sees fit at s 9.

The hearing

5. The matter was heard via MS Teams. Mr Golden was self-represented, while Ms Kwong represented the respondents. With the material filed by both parties, considered along with their oral and written submissions, I was able to make a decision without requiring a site view. The decision was given ex tempore at the end of today’s…