Li v Fang

[2018] NSWLEC 33

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Li v Fang [2018] NSWLEC 33
Hearing dates:	13 March 2018
Date of orders:	20 March 2018
Decision date:	20 March 2018
Jurisdiction:	Class 2
Before:	Moore J
Decision:	(1)   The appeal is dismissed; and (2)   Costs are reserved.
Catchwords:	APPEAL - s 56A appeal against the decision of an Acting Commissioner to order the removal of a tree - orders required the Appellants to remove two trees - no contest concerning one tree (a Turpentine) as removal was agreed between the parties and the Acting Commissioner was satisfied there was an appropriate basis under the Trees (Disputes Between Neighbours) Act 2006, for him to have jurisdiction to order the removal - seven grounds of appeal pleaded alleging errors of law in the Acting Commissioner’s decision concerning the second tree (a Tulip Tree) - several grounds based on selective, partial quotation of sentences in the Acting Commissioner’s decision - quotations of partial sentences taken entirely out of context and not reflecting what the Acting Commissioner wrote - other grounds misunderstanding the statutory framework within which the Acting Commissioner was making his decision - six of the seven grounds pleaded entirely without merit - the seventh ground was not pressed as the ground was based on a misreading of the Acting Commissioner’s orders - no error disclosed in the Acting Commissioner’s decision - appeal dismissed COSTS - general principle that costs follow the event in s 56A appeal - Respondent to the appeal self‑represented - little likelihood of question of costs arising - appropriate that costs be reserved
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 9, 10 and 12 Land and Environment Court Act 1979, s 56A
Cases Cited:	Alphatex and Baulkham Hills Shire Council [2009] NSWLEC 1104 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1998] 1 KB 223 Black v Johnson (No 2) [2017] NSWLEC 513 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Cachia v Hanes (1994) 179 CLR 403 Hinde v Anderson and anor [2009] NSWLEC 1148 Fang v Li & anor [2017] NSWLEC 1503 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; (2004) 211 ALR 472; (2004) 79 ALJR 414; [2004] HCA 63
Category:	Principal judgment
Parties:	Chunyan Li and Yong Xie (Appellants) Rui Fang (Respondent)
Representation:	Counsel: Mr J Doyle, barrister (Appellants) Self-represented (Respondent)   Solicitors: Connor & Co Lawyers (Appellants)
File Number(s):	313639 of 2017
Publication restriction:	No

TABLE OF CONTENTS

Background

The relevant provisions of the Trees Act

The on-site hearing

The Commissioner's decision

The appeal

Mr Fang’s Notice of Contention and supporting documentation

The Notice of contention

The factual material in support of Mr Fang's contention

The statutory framework for the appeal

The Appellants’ alternative proposed orders

Consideration of the grounds of appeal

Introduction

Ground (1)

Ground (2)

Introduction

The pleaded provisions of the Court Act

Retaining the path and pipe

Engaging with matters in s 12 of…