Liu v Karcher - [2022] NSWLEC 1563

Land and Environment Court

New South Wales

Medium Neutral Citation: Liu v Karcher [2022] NSWLEC 1563
Hearing dates: 23 June 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Jurisdiction: Class 1
Before: Douglas AC
Decision:
The Court Orders that:
(1) Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque.
(2) Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or remedied either by stump grinding or by persistent regrowth removal from the trunk base. The roots shall not be poisoned.
(3) The works in Order 2 shall be completed by AQF level 3 qualified arborists, with all appropriate insurances (the arborists), and in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.
(4) Should the arborists require access to the applicant’s property to undertake the works in Order 2, the applicant shall provide such access upon receipt of at least 48 hours written notice, which details the date and approximate times that works are to commence.
(5) All works shall be undertaken during reasonable working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage incurred as a result of falling branches -apprehension of further damage, and injury

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006
s7, s8, s9, s10 s12

Cases Cited:
Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Parramatta Development Control Plan 2011
Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’ (July 2016)

Category: Principal judgment
Parties: Ya Liu (Applicant)
Eugene Karcher (Respondent)
Representation: Y Liu (Self-represented) (Applicant)
E Karcher (Self-represented) (Respondent)

File Number(s): 2022/89867
Publication restriction: No

Judgment

COMMISSIONER: This is an application by Ms Ya Liu, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), with respect to three trees (T1 – T3) located in her adjacent neighbour’s property
Ms Liu (the applicant), and Mr Karcher (the respondent), share rear boundaries between their properties in Eastwood. The applicant built and occupied her residence in 2014, while Mr Karcher has lived at his property for over 50 years.

The onsite hearing

Both parties attended the hearing, with Mr Karcher accompanied by two sons. The trees are located on the respondent’s property at a higher elevation than the applicant’s land, and this allowed for an initial simultaneous inspection of the overall site. Both T1 and damage were subsequently inspected from Ms Liu’s property.
T1, a Eucalyptus saligna (Sydney Blue Gum), is the applicant’s primary concern. It is mature, stands approximately 20 metres tall, and is located on a distinct downward slope close to the shared boundary. Its trunk is leaning towards the…

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 Liu v Karcher

Details

AGLC: Liu v Karcher [2022] NSWLEC 1563
Case: [2022] NSWLEC 1563
Decision Date: 14 October 2022

CaseChat Overview and Summary

The matter of Liu v Karcher was heard in the Local Court of New South Wales. The applicant, Liu, sought relief from the court against the respondent, Karcher, concerning a dispute over a blue gum tree situated in Karcher’s backyard. Liu claimed that the tree, which was overhanging into Liu’s property, posed a risk to Liu’s safety and wellbeing, and sought an order for the tree to be removed or trimmed. Karcher resisted the application on the grounds that the tree was not his responsibility and that the applicant had not provided sufficient evidence to substantiate the claims.

The court was required to determine whether Liu had established a sufficient basis to warrant an order for the removal or trimming of the tree, and if so, what form that order should take. The court considered whether Liu had demonstrated a real and immediate risk to safety or health as a result of the tree, and whether any such risk could be mitigated by an order for trimming rather than removal. Additionally, the court needed to decide on the qualifications and insurance requirements for any arborists tasked with the works, as well as the procedural requirements for accessing Liu’s property.

In its decision, the court found that Liu had demonstrated a real and immediate risk to safety or health due to the overhanging tree. The court noted the evidence of the risk to Liu’s safety and wellbeing, as well as the lack of any evidence to suggest that trimming the tree would be sufficient to mitigate the risk. Accordingly, the court ordered the removal of the tree to near ground level, and specified that the works should be carried out by qualified arborists in accordance with safety guidelines. The court also ordered Karcher to pay Liu a sum of money and set out the procedures for accessing Liu’s property for the works to be carried out.

The court ordered Karcher to pay Liu $2369.00 within 14 days, remove the tree within 35 days, and undertake the works in accordance with specified qualifications and safety guidelines. The court also specified the procedures for accessing Liu’s property and the times during which the works could be carried out.

Orders

Orders of the court

The Court Orders that:

(1) Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque.

(2) Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or remedied either by stump grinding or by persistent regrowth removal from the trunk base. The roots shall not be poisoned.

(3) The works in Order 2 shall be completed by AQF level 3 qualified arborists, with all appropriate insurances (the arborists), and in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016.

(4) Should the arborists require access to the applicant’s property to undertake the works in Order 2, the applicant shall provide such access upon receipt of at least 48 hours written notice, which details the date and approximate times that works are to commence.

(5) All works shall be undertaken during reasonable working hours.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Liu v Karcher [2022] NSWLEC 1563
Hearing dates:	23 June 2022
Date of orders:	14 October 2022
Decision date:	14 October 2022
Jurisdiction:	Class 1
Before:	Douglas AC
Decision:	The Court Orders that: (1) Within 14 days of the date of these orders, the respondent shall pay the applicant $2369.00, by E.F.T or bank cheque. (2) Within 35 days of the date of these orders, the respondent shall, at his expense, remove Sydney Blue Gum (T1) from his rear yard to near ground level (the works). Regrowth shall be prevented or remedied either by stump grinding or by persistent regrowth removal from the trunk base. The roots shall not be poisoned. (3) The works in Order 2 shall be completed by AQF level 3 qualified arborists, with all appropriate insurances (the arborists), and in accordance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. (4) Should the arborists require access to the applicant’s property to undertake the works in Order 2, the applicant shall provide such access upon receipt of at least 48 hours written notice, which details the date and approximate times that works are to commence. (5) All works shall be undertaken during reasonable working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage incurred as a result of falling branches -apprehension of further damage, and injury
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006 s7, s8, s9, s10 s12
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Parramatta Development Control Plan 2011 Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’ (July 2016)
Category:	Principal judgment
Parties:	Ya Liu (Applicant) Eugene Karcher (Respondent)
Representation:	Y Liu (Self-represented) (Applicant) E Karcher (Self-represented) (Respondent)
File Number(s):	2022/89867
Publication restriction:	No