Gowland v Ho - [2021] NSWLEC 1534

Land and Environment Court

New South Wales

Medium Neutral Citation: Gowland v Ho [2021] NSWLEC 1534
Hearing dates: 2 June 2021
Date of orders: 15 September 2021
Decision date: 15 September 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application to remove T1, T3 and T4 is granted; the remainder of the application is refused.
(2)   Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove T1 (Black Bean), T3 (camellia) and T4 (camellia). The works must be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.
(3)   The respondents are to give the applicants 2 days’ notice of the works.
(4)   The applicants are to allow all access necessary for the works to be completed during reasonable hours of the day.
(5)   The exhibits are returned, except for Exhibits A, B and 1.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – whether the jurisdiction of the Trees Act extends to the entire retaining wall – acts and omissions of the applicants

Legislation Cited:
Conveyancing Act 1919, s 177
Dividing Fences Act 1991, ss 3, 13A
Land and Environment Court Act 1979, s 22
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:
Cincotta v Huang [2011] NSWLEC 1086
Moutia v Jarrett [2013] NSWLEC 1129
Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292
The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504
Yared v Glenhurst Gardens (2002) 10 BPR 19,485; [2002] NSWSC 11

Texts Cited:
Ku-ring-gai Development Control Plan 2021, Pt 13
Safe Work Australia, Guide to managing risks of tree trimming and removal work, (2016)

Category: Principal judgment
Parties: Judith Gowland (First Applicant)
Jonathan Gowland (Second Applicant)
Jui Piao Ho (First Respondent)
Wing Yee Iris Lui (Second Respondent)
Representation:
Counsel:
S Simington (Solicitor) (Applicants)
J Doyle (Respondents)
Solicitors:
Lindsay Taylor Lawyers (Applicants)
Hunt & Hunt Lawyers (Respondent)

File Number(s): 2021/39895
Publication restriction: No

Judgment

Background to the application

COMMISSIONER: In the leafy surrounds of East Lindfield, Judith Gowland and Jonathan Gowland (‘the applicants’) own and live at their residential property, a typical ‘battle-axe block’ set back from the street. Their long bitumen driveway passes between the property that separates theirs from the street and a neighbouring property to their south belonging to Jui Piao Ho and Wing Yee Iris Lui (‘the respondents’). The land here slopes down roughly to the south, so that the applicants’ property is higher than the respondents’ property.
Along the parties’ common boundary, between the respondents’ dwelling and…

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 Gowland v Ho

Details

AGLC: Gowland v Ho [2021] NSWLEC 1534
Case: [2021] NSWLEC 1534
Decision Date: 15 September 2021

CaseChat Overview and Summary

The case of Gowland v Ho was heard in the Civil and Administrative Tribunal of New South Wales. The applicants, the Gowlands, sought an order for the removal of certain trees on the respondents' property. The respondents, the Hos, opposed the application and argued that the trees were of significant aesthetic and cultural value and should not be removed.

The court was required to determine whether the applicants had a right to have the trees removed and, if so, what conditions should apply to the removal. The court considered the relevant legislation, including the Environmental Planning and Assessment Act 1979, and the principles of equity and fairness. The court also considered the evidence presented by both parties, including expert evidence from arborists.

The court found that the applicants had a right to have the trees removed, as they were causing damage to the applicants' property and were a potential safety hazard. However, the court also found that the respondents had a legitimate interest in preserving the trees, and that the removal should be carried out in a manner that balanced the interests of both parties. The court ordered that the trees be removed by a qualified arborist, in accordance with safety guidelines, and that the respondents give the applicants notice of the works and allow access to the property. The court also ordered that certain exhibits be returned to the respondents, with the exception of those that were to be used as evidence in any future proceedings.

The court's decision highlights the importance of balancing the rights of property owners with the need to protect the environment and public safety. The court's orders ensure that the trees are removed in a safe and responsible manner, while also respecting the cultural and aesthetic value of the trees.

Orders

Orders of the court

The Court orders:

(1) The application to remove T1, T3 and T4 is granted; the remainder of the application is refused.

(2) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove T1 (Black Bean), T3 (camellia) and T4 (camellia). The works must be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(3) The respondents are to give the applicants 2 days’ notice of the works.

(4) The applicants are to allow all access necessary for the works to be completed during reasonable hours of the day.

(5) The exhibits are returned, except for Exhibits A, B and 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gowland v Ho [2021] NSWLEC 1534
Hearing dates:	2 June 2021
Date of orders:	15 September 2021
Decision date:	15 September 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove T1, T3 and T4 is granted; the remainder of the application is refused. (2) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove T1 (Black Bean), T3 (camellia) and T4 (camellia). The works must be done in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (3) The respondents are to give the applicants 2 days’ notice of the works. (4) The applicants are to allow all access necessary for the works to be completed during reasonable hours of the day. (5) The exhibits are returned, except for Exhibits A, B and 1.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – retaining wall along boundary – whether trees have damaged the retaining wall – whether the retaining wall needs rebuilding – whether trees need to be removed – other causes of damage – whether the jurisdiction of the Trees Act extends to the entire retaining wall – acts and omissions of the applicants
Legislation Cited:	Conveyancing Act 1919, s 177 Dividing Fences Act 1991, ss 3, 13A Land and Environment Court Act 1979, s 22 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Cincotta v Huang [2011] NSWLEC 1086 Moutia v Jarrett [2013] NSWLEC 1129 Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504 Yared v Glenhurst Gardens (2002) 10 BPR 19,485; [2002] NSWSC 11
Texts Cited:	Ku-ring-gai Development Control Plan 2021, Pt 13 Safe Work Australia, Guide to managing risks of tree trimming and removal work, (2016)
Category:	Principal judgment
Parties:	Judith Gowland (First Applicant) Jonathan Gowland (Second Applicant) Jui Piao Ho (First Respondent) Wing Yee Iris Lui (Second Respondent)
Representation:	Counsel: S Simington (Solicitor) (Applicants) J Doyle (Respondents) Solicitors: Lindsay Taylor Lawyers (Applicants) Hunt & Hunt Lawyers (Respondent)
File Number(s):	2021/39895
Publication restriction:	No