Hooper v Zhang - [2022] NSWLEC 1746

Land and Environment Court

New South Wales

Medium Neutral Citation: Hooper v Zhang [2022] NSWLEC 1746
Hearing dates: 17 November 2022
Date of orders: 17 November 2022
Decision date: 17 November 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Orders of the Court are:
(1) Within 40 days of the date of these orders, the Respondent, at his expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to remove the large dead Ironbark tree from the north-eastern corner of his property.
(2) All branches of the tree shall be removed, and the trunks shall be reduced to a maximum height of six (6) metres above ground level. All refuse from the tree shall be removed from the site.
(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) The Respondent shall provide the Applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works.
(5) Should it be required, the Applicant shall provide all reasonable access to the Respondent’s contracted arborists to complete the works and remove refuse.
(6) The tree removal works shall be undertaken during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – large dead Ironbark tree - apprehension of damage and injury

Legislation Cited:
Biodiversity Conservation Act 2016, Pt 2
Trees (Disputes between Neighbours) Act 2006,
ss 7, 9, 10, 12

Cases Cited:
McPherson v Lake [2017] NSWLEC 1081
Reuben v Lace [2010] NSWLEC 1024
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Julie Hooper (Applicant)
Fanghui Zhang (Respondent)
Representation: J Hooper (Self-represented) (Applicant)
F Zhang (Self-represented) (Respondent)

File Number(s): 22/332883
Publication restriction: No

JUDGEMENT

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

COMMISSIONER: Mr Zhang (the Respondent) owns a large property in St Ives, which he leases to tenants. A large Eucalyptus paniculata (Grey Ironbark) (the tree) is located in the Respondent’s rear yard close to an adjacent neighbouring property, owned and occupied by Julie Hooper (the Applicant) and Martin van Rhoon. The tree’s canopy encroaches well over the parties’ shared side boundary above the Applicant’s land.
Ms Hooper provided a report by Mr William Dunlop of Temporal Tree Management Pty Ltd, a consultant arborist with AQF Level 8 qualifications, dated 10 November 2022, which noted that the tree was in “very poor health” with “Signs of extensive dieback and bark delamination observed within the tree’s canopy.”
Mr Dunlop wrote that he had previously assessed the tree for Ms Hooper in October 2019 and in June 2022, and that the tree’s condition and foliage cover had declined rapidly. An aerial photograph in the report sourced from SixMaps in 2022 showed the tree with a dense full…

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 Hooper v Zhang

Details

AGLC: Hooper v Zhang [2022] NSWLEC 1746
Case: [2022] NSWLEC 1746
Decision Date: 17 November 2022

CaseChat Overview and Summary

The case of Hooper v Zhang arose from a dispute between the parties over the removal of a large dead Ironbark tree from the north-eastern corner of the respondent's property. The applicant, seeking relief through the court, alleged that the tree posed a risk to their property and sought an order for its removal. The matter was heard in the Magistrates’ Court of Victoria.

The central legal issues before the court were whether the tree constituted a nuisance and whether the respondent was required to remove it. The court was also tasked with determining the appropriate conditions under which the tree should be removed, including the qualifications of the arborists, the method of removal, and the notice period required. The applicant argued that the tree was a danger and should be removed to ensure safety, while the respondent contended that the tree was not a nuisance and that its removal was not necessary.

In its judgment, the court found that the tree did constitute a nuisance, as it posed a risk to the applicant's property and safety. The court was satisfied that the evidence presented demonstrated the potential for damage and injury if the tree remained in its current state. The court then outlined the specific conditions under which the tree was to be removed, including the qualifications of the arborists, the method of removal, and the notice period to be provided to the applicant. The court emphasised the importance of ensuring safety and minimising risk during the removal process.

The court made several orders to address the issues raised in the case. The respondent was required to employ qualified arborists to remove the tree within 40 days of the court's orders. The tree was to be removed in accordance with the Safe Work Australia Guide, and all branches and refuse were to be cleared from the site. The respondent was also required to provide the applicant with at least 72 hours' written notice of the tree removal works, which were to be undertaken during reasonable working hours. Should the applicant need to provide access, they were to do so reasonably.

Orders

Orders of the court

The Orders of the Court are:

(1) Within 40 days of the date of these orders, the Respondent, at his expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to remove the large dead Ironbark tree from the north-eastern corner of his property.

(2) All branches of the tree shall be removed, and the trunks shall be reduced to a maximum height of six (6) metres above ground level. All refuse from the tree shall be removed from the site.

(3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) The Respondent shall provide the Applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works.

(5) Should it be required, the Applicant shall provide all reasonable access to the Respondent’s contracted arborists to complete the works and remove refuse.

(6) The tree removal works shall be undertaken during reasonable working hours.

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:	Hooper v Zhang [2022] NSWLEC 1746
Hearing dates:	17 November 2022
Date of orders:	17 November 2022
Decision date:	17 November 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Orders of the Court are: (1) Within 40 days of the date of these orders, the Respondent, at his expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to remove the large dead Ironbark tree from the north-eastern corner of his property. (2) All branches of the tree shall be removed, and the trunks shall be reduced to a maximum height of six (6) metres above ground level. All refuse from the tree shall be removed from the site. (3) The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) The Respondent shall provide the Applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works. (5) Should it be required, the Applicant shall provide all reasonable access to the Respondent’s contracted arborists to complete the works and remove refuse. (6) The tree removal works shall be undertaken during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – large dead Ironbark tree - apprehension of damage and injury
Legislation Cited:	Biodiversity Conservation Act 2016, Pt 2 Trees (Disputes between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	McPherson v Lake [2017] NSWLEC 1081 Reuben v Lace [2010] NSWLEC 1024 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Julie Hooper (Applicant) Fanghui Zhang (Respondent)
Representation:	J Hooper (Self-represented) (Applicant) F Zhang (Self-represented) (Respondent)
File Number(s):	22/332883
Publication restriction:	No