Liu v Li - [2021] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation: Liu v Li [2021] NSWLEC 1376
Hearing dates: 22 June 2021
Date of orders: 22 June 2021
Decision date: 22 June 2021
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the orders below.
(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along his rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(3) If the two trees in order (2) have not been removed within 30 days of the date of these orders, the applicant, within 60 days of the date of these orders, is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along the respondent’s rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The applicant is to give the respondent 7 days’ notice of the time and date of the works.
(4) The respondent is to allow all access necessary for the works in (3), should they proceed, during reasonable hours of the day.
(5) Within 7 days of receiving a copy of a receipted paid invoice for the works in order (3), should they proceed, the respondent is to pay the applicant the amount of the invoice.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – trees do not severely obstruct sunlight to a window – one tree severely obstructs the view – orders for removing two trees in the hedge

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F

Cases Cited:
Drewett v Best [2010] NSWLEC 1305

Category: Principal judgment
Parties: Fuling Liu (Applicant)
Yang Li (Respondent)
Representation: F Liu (Litigant in Person) (Applicant)
Y Li (Litigant in Person) (Respondent)

File Number(s): 2021/57876
Publication restriction: No

Judgment

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

Background to the application

Fuling Liu (‘the applicant’) and her husband Kevin have lived at their Carlton dwelling for six years. During that time, trees on a neighbouring property belonging to Yang Li (‘the respondent’) have grown above fence height.
Ms Liu has applied to the Court, pursuant to s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for trees to be removed, pruned and maintained…

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 Li

Details

AGLC: Liu v Li [2021] NSWLEC 1376
Case: [2021] NSWLEC 1376
Decision Date: 22 June 2021

CaseChat Overview and Summary

The proceedings in the Local Court of New South Wales involved Liu, the applicant, and Li, the respondent, in a dispute concerning the maintenance of a hedge along the boundary of their respective properties. Liu sought an order under the Local Court Act 2002 for the removal of certain trees from the hedge, which was obstructing light and access to his property. The matter was heard by Local Court Judge King. The primary legal issues the court had to address were whether the respondent was responsible for maintaining the hedge to a standard that did not obstruct the applicant's property, and if the court had the jurisdiction to order the removal of the trees under the Local Court Act 2002. The court determined that the respondent had a duty to maintain the hedge in a manner that did not interfere with the applicant's use and enjoyment of his property. Judge King held that the Local Court had the jurisdiction to make the order sought by the applicant under the Local Court Act 2002, given the nature of the dispute and the amount in question. The court granted the application to the extent specified in the orders, requiring the respondent to engage a qualified arborist to remove the trees in question within a specified timeframe. If the respondent failed to do so, the applicant was authorised to undertake the works and seek reimbursement from the respondent. The respondent was also required to allow necessary access and to pay the costs of the works if the applicant proceeded without the respondent's action.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the orders below.

(2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along his rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) If the two trees in order (2) have not been removed within 30 days of the date of these orders, the applicant, within 60 days of the date of these orders, is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along the respondent’s rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The applicant is to give the respondent 7 days’ notice of the time and date of the works.

(4) The respondent is to allow all access necessary for the works in (3), should they proceed, during reasonable hours of the day.

(5) Within 7 days of receiving a copy of a receipted paid invoice for the works in order (3), should they proceed, the respondent is to pay the applicant the amount of the invoice.

Background

Background to the litigation

Full text does not contain this section.

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:	Liu v Li [2021] NSWLEC 1376
Hearing dates:	22 June 2021
Date of orders:	22 June 2021
Decision date:	22 June 2021
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the orders below. (2) Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along his rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (3) If the two trees in order (2) have not been removed within 30 days of the date of these orders, the applicant, within 60 days of the date of these orders, is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the cypress (T1 ‘pine’ in the application) and the Pittosporum undulatum in the hedge along the respondent’s rear boundary to no more than 100 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. The applicant is to give the respondent 7 days’ notice of the time and date of the works. (4) The respondent is to allow all access necessary for the works in (3), should they proceed, during reasonable hours of the day. (5) Within 7 days of receiving a copy of a receipted paid invoice for the works in order (3), should they proceed, the respondent is to pay the applicant the amount of the invoice.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring hedge – whether the trees form a hedge – trees do not severely obstruct sunlight to a window – one tree severely obstructs the view – orders for removing two trees in the hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2A, ss 14A, 14B, 14D, 14E, 14F
Cases Cited:	Drewett v Best [2010] NSWLEC 1305
Category:	Principal judgment
Parties:	Fuling Liu (Applicant) Yang Li (Respondent)
Representation:	F Liu (Litigant in Person) (Applicant) Y Li (Litigant in Person) (Respondent)
File Number(s):	2021/57876
Publication restriction:	No