Lee v Poon

Case [2007] NSWLEC 613

Land and Environment Court


of New South Wales


CITATION: Lee & anor v Poon & anor [2007] NSWLEC 613
PARTIES:

APPLICANTS
Jae-yeon and Julie Lee

RESPONDENTS
Charles and Karen Poon
FILE NUMBER(S): 20621 of 2007
CORAM: Moore C - Thyer AC
KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Consent orders
LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING: 20 September 2007
EX TEMPORE JUDGMENT DATE: 20 September 2007
LEGAL REPRESENTATIVES:

APPLICANTS
First applicant

RESPONDENTS
In person


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      MOORE C
      THYER AC

      20 September 2007

      07/20621 Jae-yeon Lee & anor v Charles Poon & anor

      JUDGMENT

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

      The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application is made by Mr and Ms Lee, residents of 69 Cliff Road, Epping concerning a tree that is located to the east of their property on 67 Cliff Road, owned by Mr and Ms Poon. The tree is a Jacaranda (Jacaranda mimosifolia).

3. We have attended the site and had the opportunity of inspecting the tree from the applicants’ side of the fence.

4. During the course of the view, the respondents agreed to remove the tree at their cost.

5. We inspected the damage which had been caused by the roots of the tree to the applicants’ carport and fence. The extent of the past damage is sufficient to enliven the Court’s jurisdiction pursuant to the first test posed by s 10(2)(a) of the Act.

6. We are also satisfied that it is prudent to give effect to the agreement between the parties that the tree be removed. Consent orders will be made to give effect to this agreement.

7. In doing so, we also note that, by consent, the applicants’ claim for compensation for the damage caused by the tree is to be dismissed.

Tim Moore

Commissioner of the Court


Acting Commissioner of the Court

Details
AGLC
Lee v Poon [2007] NSWLEC 613
Case
[2007] NSWLEC 613
Decision Date

CaseChat Overview and Summary

The applicants, Jae-yeon and Julie Lee, brought this matter before the Land and Environment Court of New South Wales to seek relief concerning a Jacaranda tree located on the property of the respondents, Charles and Karen Poon. The Lees, residents of 69 Cliff Road, Epping, lodged the application under the Trees (Disputes Between Neighbours) Act 2006, citing damage caused by the tree to their carport and fence. The respondents, owners of the property at 67 Cliff Road, where the tree is situated, engaged in negotiations with the Lees during which they agreed to remove the tree at their own expense. The court was tasked with deciding whether to formalise this agreement through consent orders, and if so, whether to dismiss the Lees’ claim for compensation for the damage caused by the tree.

The primary legal issue before the court was whether to grant consent orders formalising the agreement between the parties for the removal of the Jacaranda tree, and whether to dismiss the Lees’ claim for compensation. Under the Act, the court must consider whether the damage caused by the tree is sufficient to invoke its jurisdiction. The court also needed to assess whether the agreement between the parties was in the best interest of resolving the dispute and whether dismissing the compensation claim was appropriate given the circumstances.

The court, presided over by Commissioner Tim Moore and Acting Commissioner Thyer, conducted an inspection of the site and the tree from the applicants' side of the fence. They observed the damage to the applicants' carport and fence, which was deemed sufficient to warrant the court's jurisdiction under s 10(2)(a) of the Act. Given that the respondents had agreed to remove the tree, the court found it prudent to formalise this agreement through consent orders. Additionally, the court noted that by mutual consent, the applicants' claim for compensation was to be dismissed. Therefore, the court proceeded to make the necessary consent orders to formalise the agreement between the parties.

The final orders of the court included formalising the agreement between the parties to remove the Jacaranda tree, dismissing the applicants' claim for compensation, and making the consent orders in accordance with the agreement. These orders were made to ensure that the tree is removed at the respondents' cost, and to resolve the dispute between the neighbours amicably.

Orders

Orders of the court

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Background

Background to the litigation

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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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