Lee v Lau

[2021] NSWLEC 1809

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lee v Lau [2021] NSWLEC 1809

Hearing dates:

2 September 2021

Date of orders:

2 September 2021

Decision date:

02 September 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –tree growing on lean near boundary and fence – apprehension of damage and injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hornsby Shire Council v Malcolm (1986) 60 LGRA 429

Murray v Shoebridge [2007] NSWLEC 785

P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

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

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Mark Lee (Applicant)
Cecelia Lau (Respondent)

Representation:

M Lee (litigant in person) (Applicants)
C Lau (litigant in person) (Respondent)

File Number(s):

2021/140960

Publication restriction:

No

Judgment

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

1. COMMISSIONER: The applicant, Mr Lee, shares a rear property boundary with Ms Lau, the respondent, in Eastwood. Ms Lau has resided there for about 24 years, and Mr Lee, for about 17 years.

2. Mr Lee lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to prevent near future damage from a tree, and associated risk of injury. The tree is a Pinus radiata (Radiata pine) in early to mid-maturity, about 12 metres in height with a canopy spread of approximately 9 metres. It is located about 3 metres from Ms Lau’s rear boundary. Between the properties is a stormwater channel, about 2 metres wide with banks about 2 metres wide on either side. Thus, there is a gap of about 6 metres between the rear boundaries of the two properties.

The applicant’s case

3. In his application, Mr Lee proposes the following orders:

(a) To restrain or prevent damage to property.

(b) To prevent injury to any person.

The respondent’s case

4. Ms Lau resists the proposed order for removal of the tree. In communication with Mr Lee, the respondent said she did not have a problem with the tree, but granted permission for Mr Lee to prune it, at his expense, and subject to Council permission having been granted.

The on-site hearing

5. The hearing was conducted via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy, on 2 September 2021. Both parties were self-represented.

6. Based on photographs supplied, the tree appears to be healthy and vigorous, with a dense foliage cover. Its trunk and branches display no obvious faults, nor is there any reported history of branch failures.

Jurisdictional requirements

7. With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or…