Lo v Ji

[2023] NSWLEC 1603

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lo v Ji [2023] NSWLEC 1603

Hearing dates:

26 September 2023

Date of orders:

26 September 2023

Decision date:

26 September 2023

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – risk of damage and injury – whether trees have caused or are likely to cause damage to the applicant’s property – whether other matters are within the jurisdiction of the Trees Act

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10

Cases Cited:

Hui v Gu [2021] NSWLEC 1335

Texts Cited:

Parramatta Development Control Plan 2023

Category:

Principal judgment

Parties:

Yuk K Lo (First Applicant)
Fong C Hui (Second Applicant)
Rong Ji (Respondent)

Representation:

Counsel:
D Hui (Agent) (First Applicant)
L Matheson (Agent) (Second Applicant)
H Murdoch (Solicitor) (Respondent)

Solicitors:
Parish Patience Legal and Migration Services (Respondent)

File Number(s):

2023/227371

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Yuk K Lo and Fong C Hui (the applicants) have applied to the Court seeking orders relating to four trees growing on the neighbouring Epping property of Rong Ji (the respondent). Pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicants seek the following orders (as copied from the application):

1. The Respondent shall prune the Crepe Myrtle in his front yard, and ensure that the height of the Crepe Myrtle remains below the Applicant's cables. The said plant is growing too lush, which may affect the Applicant's cables.

2. The Respondent shall ensure that the height of all plants is, and continuous to remain below the fence's height on both sides of 73 Oxford Street and 2A/2B Derby Street. The Applicant concerns that the roots of those plants may damage Sydney Water underground pipelines.

3. The Respondent shall reimburse the costs occurred regarding this application.

2. The claim details form (Form H) accompanying the application includes a plan showing four trees. Tree A is the Crepe Myrtle near the front of the respondent’s property. Trees B, C and D, which are small unidentified trees, are along the respondent’s western boundary, beyond that section of the boundary shared with the applicants’ land. The plan shows a sewer line running north from the applicants’ property along two properties to the north, adjacent to the respondent’s western boundary and close to trees B, C and D. Despite only four trees being shown in the plan, and further to order (2) sought by the applicants, the applicants submitted onsite that they seek an order preventing the respondent planting any more trees near their common boundary.

3. The hearing took place onsite, allowing the Court to inspect the trees. I determined earlier tree dispute proceedings between these parties in 2021 (Hui v Gu [2021] NSWLEC 1335). Orders made in that decision have been carried out.

Framework for this decision

4. The Trees Act, at s 10, sets out jurisdictional tests that must be satisfied before the Court can make orders.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Reasonable effort

5. Material filed with the application points to an ongoing dispute between these neighbours. The applicants applied for mediation through the Community Justice Centre, satisfying me that they have made a reasonable effort to reach agreement. The applicants submitted that the respondent’s refusal to attend mediation demonstrated a lack of effort on her part, but the test at s 10(1)(a) of the Trees Act puts the onus only on the applicant.

Tree A

6. The Crepe Myrtle grows near the front corner of the respondent’s property adjacent to the common boundary shared with the applicants. Service wires from the street to the applicants’ dwelling pass through the tree’s crown, touching some small branches. The applicants submitted that branches may interfere with their electricity supply, and they want the tree pruned. The respondent submitted that the applicants are able to prune branches near their service wires if they wish.

7. When asked if the Crepe Myrtle have ever caused any damage to their service wires, the applicants answered that they have not caused any damage or interfered with their electricity supply; rather, they are worried this might happen. The situation appears unchanged from what I observed when I came to these properties for an onsite hearing in 2021. The tree is slow-growing. It has not caused damage and, in my mind, is unlikely to cause damage in the near future. It is also unlikely to cause injury. It follows that, according to s 10(2) of the Trees Act, the Court can make no orders for interfering with this tree. Should the applicants wish to prevent small branches rubbing against their service wires, they can remove branches according to one of the exemptions at Control C.10 of clause 5.3.4 of the Parramatta Development Control Plan 2023:

“Pruning of trees to remove branches no larger than 50mm diameter at the nearest branch collar to maintain distance clearances to powerlines as set out under the Electricity Supply Act 1995”.

Trees B, C and D

8. Three trees in the application (B, C and D) are close to the respondent’s western boundary. The applicants submitted that roots of these trees have damaged, or are likely to damage, a sewer pipe on the other side of the boundary fence, where the pipe runs along the back of other neighbouring properties from the northeast corner of the applicants’ property. They submitted that a form filled in by the respondent cited sewer damage as a reason for removing other trees, therefore demonstrating that these trees are damaging the sewer pipe. When asked, the applicants answered that they had not experienced any issues with their sewer service. No evidence was adduced to demonstrate that these trees are likely to damage the sewer pipe. Again, it follows that the Court cannot make any orders regarding these trees (s 10(2) of the Trees Act).

Other trees and issues

9. The applicants submitted that the respondent bullies them by planting trees on her property near their common boundary. They submitted that the respondent, and particularly her trees, cause them anxiety and stress. They seek orders for any trees along the boundary to be maintained below fence height, and they want to prevent the respondent planting any more trees. I found no evidence that the existing small trees along this boundary are likely to cause any damage or physical injury. The level of stress described by the applicants seems disproportionate to the size of the trees. I am not satisfied that any trees on the respondent’s land are likely to cause injury to any person, including the applicants. Under the Trees Act, the Court has no jurisdiction to make orders under Pt 2 of the Trees Act for trees that might be planted in future. ­­­­­­­

10. As a result of the above, it follows that no orders can be made in these proceedings.

Orders

11. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

Decision last updated: 11 October 2023