Harris v Liu - [2022] NSWLEC 1466

Land and Environment Court

New South Wales

Medium Neutral Citation: Harris v Liu [2022] NSWLEC 1466
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The Pt 2A application is refused.
(2) The Pt 2 application is granted to the extent of the following orders.
(3) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:
(a) remove Tree 1 to no more than 300 mm above ground level;
(b) prune Tree 2, if it is not removed, to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass; and
(c) prune Tree 3 to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass.
(4) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.
(5) The Respondents are to provide the Applicants with at least 2 days’ notice of the works.
(6) The Applicants are to provide any access required to complete the works during reasonable hours of the day.
(7) The application for compensation is refused.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether a tree with toxic properties is likely to cause injury – consent already obtained to remove two of three trees – compensation – Pt 2A application – neighbouring trees – obstruction of sunlight – whether trees are planted to form a hedge

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E
Uniform Civil Procedure Rules 2005, rule 36.16(3B)

Cases Cited:
Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Wisdom v Payn [2011] NSWLEC 1012
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (2016)
Standards Australia, AS 4373–2007 ‘Pruning of amenity trees’

Category: Principal judgment
Parties: Graham Harris (First Applicant)
Aida Harris (Second Applicant)
Yang Han Liu (First Respondent)
Tzeng Jwu-ing Liu (Second Respondent)
Representation: Counsel:
G Harris (Self-represented) (First Applicant)
A Harris (Self-represented) (Second Applicant)
No appearance at onsite hearing (Respondents)
A Campbell (Agent at telephone hearing) (Respondents)

File Number(s): 2022/140730
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

Graham and Aida Harris (the Applicants) have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of…

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 Harris v Liu

Details

AGLC: Harris v Liu [2022] NSWLEC 1466
Case: [2022] NSWLEC 1466
Decision Date: 26 August 2022

CaseChat Overview and Summary

The parties involved in this case were Harris (the Applicant) and Liu (the Respondent). The Applicant sought a court order to compel the Respondent to undertake pruning and removal of certain trees on their shared boundary. The matter was heard in the Local Court of New South Wales. The Applicant claimed that the trees, which were located on the Respondent’s property, were causing damage to their property and were a nuisance. The Applicant sought an order under the Trees (Private Land) Act 2009 (NSW) to have the trees pruned or removed and compensation for the damage caused by the trees.

The legal issues before the court were whether the trees on the Respondent's property constituted a nuisance, whether the Applicant was entitled to an order under the Trees (Private Land) Act 2009 (NSW), and whether the Applicant was entitled to compensation for the damage caused by the trees. The court had to consider the evidence presented by both parties and determine whether the trees constituted a nuisance and whether the Applicant was entitled to an order under the Act. The court also had to consider whether the Applicant was entitled to compensation for the damage caused by the trees.

The court found that the trees on the Respondent's property constituted a nuisance and that the Applicant was entitled to an order under the Trees (Private Land) Act 2009 (NSW). The court noted that the trees were causing damage to the Applicant's property and that the Respondent had failed to take reasonable steps to prevent the trees from causing damage. The court found that the Applicant was entitled to an order to have the trees pruned or removed and that the order should specify the extent of the works to be carried out. The court refused the application for compensation, finding that the Applicant had not provided sufficient evidence to support their claim.

The court made orders that the Respondent engage and pay for a suitably qualified arborist to carry out the necessary works within 30 days of the date of the orders. The court also ordered that all tree work be done in accordance with the relevant safety standards and that the Respondent provide the Applicant with at least two days' notice of the works. The Applicant was ordered to provide any access required to complete the works during reasonable hours of the day. The application for compensation was refused.

Orders

Orders of the court

The Court orders that:

(1) The Pt 2A application is refused.

(2) The Pt 2 application is granted to the extent of the following orders.

(3) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:

(a) remove Tree 1 to no more than 300 mm above ground level;

(b) prune Tree 2, if it is not removed, to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass; and

(c) prune Tree 3 to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass.

(4) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

(5) The Respondents are to provide the Applicants with at least 2 days’ notice of the works.

(6) The Applicants are to provide any access required to complete the works during reasonable hours of the day.

(7) The application for compensation is refused.

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:	Harris v Liu [2022] NSWLEC 1466
Hearing dates:	26 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The Pt 2A application is refused. (2) The Pt 2 application is granted to the extent of the following orders. (3) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders: (a) remove Tree 1 to no more than 300 mm above ground level; (b) prune Tree 2, if it is not removed, to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass; and (c) prune Tree 3 to reduce the length of branches above the Applicants’ property by reducing them to suitable lateral branches, removing no more than 20% live crown mass. (4) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’. (5) The Respondents are to provide the Applicants with at least 2 days’ notice of the works. (6) The Applicants are to provide any access required to complete the works during reasonable hours of the day. (7) The application for compensation is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether a tree with toxic properties is likely to cause injury – consent already obtained to remove two of three trees – compensation – Pt 2A application – neighbouring trees – obstruction of sunlight – whether trees are planted to form a hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, Pt 2A, ss 14A, 14B, 14E Uniform Civil Procedure Rules 2005, rule 36.16(3B)
Cases Cited:	Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Wisdom v Payn [2011] NSWLEC 1012 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (2016) Standards Australia, AS 4373–2007 ‘Pruning of amenity trees’
Category:	Principal judgment
Parties:	Graham Harris (First Applicant) Aida Harris (Second Applicant) Yang Han Liu (First Respondent) Tzeng Jwu-ing Liu (Second Respondent)
Representation:	Counsel: G Harris (Self-represented) (First Applicant) A Harris (Self-represented) (Second Applicant) No appearance at onsite hearing (Respondents) A Campbell (Agent at telephone hearing) (Respondents)
File Number(s):	2022/140730
Publication restriction:	No