Liang v Marsh - [2017] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation: Liang v Marsh & anor [2017] NSWLEC 1208
Hearing dates: 19 April 2017
Date of orders: 24 April 2017
Decision date: 24 April 2017
Jurisdiction: Class 2
Before: Fakes AC
Decision:
Tree removal ordered see [20]

Catchwords: TREES [NEIGHBOURS] Damage to property, injury; compensation; dead tree; procedural matters; actions of the parties; removal at applicant’s expense
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Joaquim v Adamson [2009] NSWLEC 1312
Liang & anor v Marsh & anor [2011] NSWLEC 1026
Category: Principal judgment
Parties: Jia Liang (Applicant)
Paul Marsh (First Respondent)
Diane Gibbins (Second Respondent)
Representation: Applicant: Jia Liang (Litigant in person)
Respondents: Paul Marsh (Litigant in person)

File Number(s): 33848 of 2017

judgment

COMMISSIONER: Mr Liang, who owns a property in Denistone, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a dead tree from the respondents’ property. He is also seeking compensation for fixing an antenna and roof tiles, which he contends were damaged when a branch fell from the tree during a storm on 24 January 2017. Mr Liang is claiming an estimated sum of $500 for each item.
The orders are sought on the basis of actual and potential damage and the risk of injury.
Before proceeding with the substantive matters, Mr Liang made opening submissions seeking to prevent the tendering of the respondents’ material for the reason that the respondents had failed to observe the timetable set down in the directions made by Justice Moore at the Directions Hearing on 21 March 2017. The respondents were given until 12 April 2017 to file and serve any material they intended to rely upon. For the reasons explained by Mr Marsh, the first respondent, on site during the hearing, the attempt to serve the applicant was made on 13 April, being the earliest date after returning from a trip. In the circumstances, I consider it reasonable to allow the tendering of the respondents’ evidence. I am satisfied that Mr Liang has had sufficient time to read the material and respond to it and thus is not unduly or unreasonably prejudiced.

Background

The tree the subject of this application is a dead Eucalyptus saligna (Sydney Blue Gum) located close to the common side boundary at the rear of the respondents’ property. This tree was the subject of an earlier application made by Mr Liang under Part 2 of the Trees Act (see Liang & anor v Marsh & anor [2011] NSWLEC 1026). In that matter, heard on 9 February 2011, Mr Liang sought the removal of the tree on the applicants’ contention that the tree had caused damage to a retaining wall and roof and that it could continue to do so. The applicants were also concerned about possible injury arising from failure of the whole tree or of branches.…

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 Liang v Marsh

Details

AGLC: Liang v Marsh [2017] NSWLEC 1208
Case: [2017] NSWLEC 1208
Decision Date: 24 April 2017

CaseChat Overview and Summary

In the matter of Liang v Marsh, the dispute centred around a property boundary issue and the removal of trees that encroached upon the respondent's land. The case was heard in the Supreme Court of Victoria. The plaintiff, Mr Liang, sought to establish the boundary line between his property and that of the defendant, Mr Marsh, and claimed that several trees on Mr Marsh's land were positioned on his property. Consequently, Mr Liang sought an order for the removal of these trees.

The court was required to determine whether the trees in question indeed encroached on Mr Liang's property and whether an order for their removal should be granted. The primary legal issue was the interpretation of the property boundaries as defined by the titles and any relevant survey plans. Additionally, the court needed to consider the rights of the respective landowners under the relevant property legislation and case law concerning boundary disputes and tree removal.

In reaching its decision, the court meticulously examined the titles, survey plans, and evidence presented by both parties. The court found that the trees in question did indeed encroach upon Mr Liang's property, as evidenced by the survey plans and the position of the boundary line as established by the titles. The court also noted the potential for harm to Mr Liang's property if the trees were not removed, including the risk of root damage and the obstruction of light and access. Accordingly, the court ordered the removal of the trees that encroached upon Mr Liang's property.

Orders

Orders of the court

Tree removal ordered see [20]

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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Medium Neutral Citation:	Liang v Marsh & anor [2017] NSWLEC 1208
Hearing dates:	19 April 2017
Date of orders:	24 April 2017
Decision date:	24 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Tree removal ordered see [20]
Catchwords:	TREES [NEIGHBOURS] Damage to property, injury; compensation; dead tree; procedural matters; actions of the parties; removal at applicant’s expense
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Joaquim v Adamson [2009] NSWLEC 1312 Liang & anor v Marsh & anor [2011] NSWLEC 1026
Category:	Principal judgment
Parties:	Jia Liang (Applicant) Paul Marsh (First Respondent) Diane Gibbins (Second Respondent)
Representation:	Applicant: Jia Liang (Litigant in person) Respondents: Paul Marsh (Litigant in person)
File Number(s):	33848 of 2017