Li v Richardson - [2024] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation: Li v Richardson [2024] NSWLEC 1634
Hearing dates: 20 August 2024
Date of orders: 11 October 2024
Decision date: 11 October 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The second respondent’s name is corrected to Doreen Finkelstein.
(2) The application is granted only to the extent of the following orders.
(3) Within 30 days of the date of these orders, the respondents are to obtain at least two quotes for removing the camphor laurel at their rear boundary (the tree) to no more than 200 mm above ground level. The quotes must be provided by appropriately insured arboricultural contractors with suitably qualified (minimum AQF level 3) arborists who will carry out the work. The quotes must specify areas required for access for the works, including for vehicles. Access may be through either the applicants’ or the respondents’ properties, whichever is the most efficient.
(4) Within 30 days of the date of these orders, the respondents are to provide the applicants with copies of the quotes obtained in Order (3) and evidence of their preferred contractor’s insurance and qualifications.
(5) The respondents are to engage the contractor of their choice to remove the tree to no more than 200 mm above ground level within 90 days of the date of these orders. The tree removal works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(6) The respondents are to give the applicants at least one week’s notice of the works in Order (5).
(7) The applicants and respondents are to provide any access for the works in Order (5) to be completed during reasonable hours of the day.
(8) The applicants are to reimburse the respondents 50% of the cost of the tree removal works within 14 days of receiving a copy of the paid invoice for the works.
(9) If the respondents do not provide the applicants with a copy of the paid invoice within 30 days of completion of the tree removal works, order (8) lapses.
(10) The exhibits are returned, other than Exhibits A-C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether the tree has caused damage – whether the tree must be removed – who should pay the cost of removing the tree – whether the applicants should be compensated for property damage

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513
Watt v Menz [2023] NSWLEC 1808

Texts Cited:
Burwood Development Control Plan 2012
Safe Work Australia, Guide to managing risks of tree trimming and removal work, July 2016

Category: Principal judgment
Parties: Quan Li (First Applicant)
Shuang Yan Li (Second Applicant)
James Richardson (First Respondent)
Doreen Finkelstein (Second Respondent)
Representation: Q Li (Self-represented) (First Applicant)
S Y Li (Self-represented) (Second Applicant)
J Richardson (Self-represented) (First Respondent)
D Finkelstein (Self-represented) (Second Respondent)

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 Li v Richardson

Details

AGLC: Li v Richardson [2024] NSWLEC 1634
Case: [2024] NSWLEC 1634
Decision Date: 11 October 2024

CaseChat Overview and Summary

The matter of Li v Richardson was heard in the Local Court of New South Wales. The applicants, Li, sought orders against the respondents, Richardson, to remove a tree that encroached on their property from the respondents' land. The dispute centred on the responsibility for the removal of a camphor laurel tree that stood at the boundary of the applicants' and respondents' properties, and the costs associated with its removal. The applicants argued that the tree was a nuisance and a potential hazard, while the respondents contended that they were not obligated to remove the tree and that the applicants should bear the costs.

The court was required to determine whether the respondents were legally obligated to remove the tree and, if so, who should bear the costs of its removal. The court considered the relevant statutory provisions and common law principles concerning boundary trees and nuisance. It also took into account the potential impact of the tree on the applicants' property and the safety requirements for tree removal.

The court found that the respondents were responsible for the removal of the tree to a height of 200 mm above ground level, in accordance with the Safe Work Australia guidelines. The court ordered that the respondents obtain quotes from qualified arborists and engage a contractor to carry out the removal within a specified timeframe. The court also ordered that the applicants reimburse the respondents 50% of the cost of the tree removal, provided that the respondents provided evidence of the paid invoice within the stipulated period. The court rejected the applicants' claim for an injunction to prevent the respondents from interfering with their access to the tree.

The court's orders were designed to balance the rights and responsibilities of both parties while ensuring that the tree was removed in a safe and efficient manner. The court emphasised the importance of cooperation between the parties in achieving a practical and equitable outcome.

Orders

Orders of the court

The Court orders:

(1) The second respondent’s name is corrected to Doreen Finkelstein.

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

(3) Within 30 days of the date of these orders, the respondents are to obtain at least two quotes for removing the camphor laurel at their rear boundary (the tree) to no more than 200 mm above ground level. The quotes must be provided by appropriately insured arboricultural contractors with suitably qualified (minimum AQF level 3) arborists who will carry out the work. The quotes must specify areas required for access for the works, including for vehicles. Access may be through either the applicants’ or the respondents’ properties, whichever is the most efficient.

(4) Within 30 days of the date of these orders, the respondents are to provide the applicants with copies of the quotes obtained in Order (3) and evidence of their preferred contractor’s insurance and qualifications.

(5) The respondents are to engage the contractor of their choice to remove the tree to no more than 200 mm above ground level within 90 days of the date of these orders. The tree removal works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(6) The respondents are to give the applicants at least one week’s notice of the works in Order (5).

(7) The applicants and respondents are to provide any access for the works in Order (5) to be completed during reasonable hours of the day.

(8) The applicants are to reimburse the respondents 50% of the cost of the tree removal works within 14 days of receiving a copy of the paid invoice for the works.

(9) If the respondents do not provide the applicants with a copy of the paid invoice within 30 days of completion of the tree removal works, order (8) lapses.

(10) The exhibits are returned, other than Exhibits A-C.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Li v Richardson [2024] NSWLEC 1634
Hearing dates:	20 August 2024
Date of orders:	11 October 2024
Decision date:	11 October 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The second respondent’s name is corrected to Doreen Finkelstein. (2) The application is granted only to the extent of the following orders. (3) Within 30 days of the date of these orders, the respondents are to obtain at least two quotes for removing the camphor laurel at their rear boundary (the tree) to no more than 200 mm above ground level. The quotes must be provided by appropriately insured arboricultural contractors with suitably qualified (minimum AQF level 3) arborists who will carry out the work. The quotes must specify areas required for access for the works, including for vehicles. Access may be through either the applicants’ or the respondents’ properties, whichever is the most efficient. (4) Within 30 days of the date of these orders, the respondents are to provide the applicants with copies of the quotes obtained in Order (3) and evidence of their preferred contractor’s insurance and qualifications. (5) The respondents are to engage the contractor of their choice to remove the tree to no more than 200 mm above ground level within 90 days of the date of these orders. The tree removal works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (6) The respondents are to give the applicants at least one week’s notice of the works in Order (5). (7) The applicants and respondents are to provide any access for the works in Order (5) to be completed during reasonable hours of the day. (8) The applicants are to reimburse the respondents 50% of the cost of the tree removal works within 14 days of receiving a copy of the paid invoice for the works. (9) If the respondents do not provide the applicants with a copy of the paid invoice within 30 days of completion of the tree removal works, order (8) lapses. (10) The exhibits are returned, other than Exhibits A-C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –whether the tree has caused damage – whether the tree must be removed – who should pay the cost of removing the tree – whether the applicants should be compensated for property damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 Watt v Menz [2023] NSWLEC 1808
Texts Cited:	Burwood Development Control Plan 2012 Safe Work Australia, Guide to managing risks of tree trimming and removal work, July 2016
Category:	Principal judgment
Parties:	Quan Li (First Applicant) Shuang Yan Li (Second Applicant) James Richardson (First Respondent) Doreen Finkelstein (Second Respondent)
Representation:	Q Li (Self-represented) (First Applicant) S Y Li (Self-represented) (Second Applicant) J Richardson (Self-represented) (First Respondent) D Finkelstein (Self-represented) (Second Respondent)