Mirzaee-Amirabad v Wang - [2024] NSWLEC 1744

Land and Environment Court

New South Wales

Medium Neutral Citation: Mirzaee-Amirabad v Wang [2024] NSWLEC 1744
Hearing dates: 5 November 2024
Date of orders: 20 November 2024
Decision date: 20 November 2024
Jurisdiction: Class 2
Before: Nichols AC
Decision:
The Court orders:
(1) The application is upheld in part.
(2) Within 6 months of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.
(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4) Commencing 24 months after the first inspection, the work in Order (2) is to be undertaken at least every 60 months for the life of the tree.
(5) The application to remove the trees is dismissed.
(6) Within 30 days of the date of these orders, the applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence.
(7) Within 90 days of the date of these orders the applicant is to engage and pay for a contractor to carry out the fence replacement works.
(8) On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.
(9) Within 14 days of receiving a receipted invoice from the applicant for the completed fencing works, the respondent is to pay the applicant 50% of the cheapest quote from Order (6).

Catchwords:
TREES (NEIGHBOURS) potential damage – tree damaging fence – standard fence – orders made

Legislation Cited:
Dividing Fences Act 1991, ss 4, 7
Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Western Lands Act 1901
Georges River Local Environmental Plan 2013
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:
Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson [2009] NSWLEC 1148
McCallum v Riodan [2011] NSWLEC 1009
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093

Texts Cited:
AS4373: 2007 - Pruning of Amenity Trees 2007
WorkCover NSW Code of Practice for the Amenity Tree Industry 1998

Category: Principal judgment
Parties: Sima Mirzaee-Amirabad (Applicant)
Jessica Wang (Respondent)
Representation:
Counsel:
S Razi (Solicitor) (Applicant)
C Graves (Solicitor) (Respondent)
Solicitors:
Azadi Lawyers (Applicant)
WMD Law (Respondent)

File Number(s): 2024/319546
Publication restriction: Nil

JUDGMENT

COMMISSIONER: The applicant contends…

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 Mirzaee-Amirabad v Wang

Details

AGLC: Mirzaee-Amirabad v Wang [2024] NSWLEC 1744
Case: [2024] NSWLEC 1744
Decision Date: 20 November 2024

CaseChat Overview and Summary

Mirzaee-Amirabad v Wang is a case before the NSW Civil and Administrative Tribunal (NCAT) involving a dispute between two residential property owners over the maintenance of a shared boundary tree and the replacement of a dividing fence. The applicant sought orders for the removal of a tree, and the replacement of a shared boundary fence. The respondent opposed the removal of the tree and sought orders for the pruning of the tree and the replacement of the shared boundary fence. The Tribunal was required to determine whether the tree should be removed, and if not, what maintenance was necessary, as well as to determine the orders regarding the replacement of the dividing fence.

The primary legal issue before the Tribunal was whether the tree was a hazard and required removal under s 84 of the Local Government Act 1993 (NSW). The applicant argued that the tree posed a significant risk to the respondent’s property and safety. The respondent contended that the tree was not hazardous and should be maintained through regular pruning. The second issue was whether the shared boundary fence was in a state of disrepair and required replacement. The applicant argued that the fence was insufficient and in a state of disrepair. The respondent opposed the replacement of the fence, claiming that it was sufficient.

The Tribunal held that the tree was not hazardous and did not require removal. Instead, it was necessary to prune the tree in accordance with the relevant standards to ensure its safety and longevity. The Tribunal ordered the respondent to engage an arborist to inspect and prune the tree as necessary. Regarding the fence, the Tribunal found that the existing fence was insufficient and ordered the applicant to obtain quotes for the replacement of the fence and for the respondent to pay half the cost of the cheapest quote. The Tribunal dismissed the application to remove the tree, and ordered the replacement of the shared boundary fence.

The Tribunal ordered that within six months of the date of the judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The work is to be undertaken at least every 60 months for the life of the tree. The application to remove the trees is dismissed. The applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence. The applicant is to engage and pay for a contractor to carry out the fence replacement works within 90 days of the date of these orders. The respondent is to allow all access required for these works during reasonable hours of the day. The respondent is to pay the applicant 50% of the cheapest quote from Order (6) within 14 days of receiving a receipted invoice from the applicant for the completed fencing works.

Orders

Orders of the court

The Court orders:

(1) The application is upheld in part.

(2) Within 6 months of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Commencing 24 months after the first inspection, the work in Order (2) is to be undertaken at least every 60 months for the life of the tree.

(5) The application to remove the trees is dismissed.

(6) Within 30 days of the date of these orders, the applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence.

(7) Within 90 days of the date of these orders the applicant is to engage and pay for a contractor to carry out the fence replacement works.

(8) On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.

(9) Within 14 days of receiving a receipted invoice from the applicant for the completed fencing works, the respondent is to pay the applicant 50% of the cheapest quote from Order (6).

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:	Mirzaee-Amirabad v Wang [2024] NSWLEC 1744
Hearing dates:	5 November 2024
Date of orders:	20 November 2024
Decision date:	20 November 2024
Jurisdiction:	Class 2
Before:	Nichols AC
Decision:	The Court orders: (1) The application is upheld in part. (2) Within 6 months of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees. (3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4) Commencing 24 months after the first inspection, the work in Order (2) is to be undertaken at least every 60 months for the life of the tree. (5) The application to remove the trees is dismissed. (6) Within 30 days of the date of these orders, the applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence. (7) Within 90 days of the date of these orders the applicant is to engage and pay for a contractor to carry out the fence replacement works. (8) On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day. (9) Within 14 days of receiving a receipted invoice from the applicant for the completed fencing works, the respondent is to pay the applicant 50% of the cheapest quote from Order (6).
Catchwords:	TREES (NEIGHBOURS) potential damage – tree damaging fence – standard fence – orders made
Legislation Cited:	Dividing Fences Act 1991, ss 4, 7 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Western Lands Act 1901 Georges River Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson [2009] NSWLEC 1148 McCallum v Riodan [2011] NSWLEC 1009 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Texts Cited:	AS4373: 2007 - Pruning of Amenity Trees 2007 WorkCover NSW Code of Practice for the Amenity Tree Industry 1998
Category:	Principal judgment
Parties:	Sima Mirzaee-Amirabad (Applicant) Jessica Wang (Respondent)
Representation:	Counsel: S Razi (Solicitor) (Applicant) C Graves (Solicitor) (Respondent) Solicitors: Azadi Lawyers (Applicant) WMD Law (Respondent)
File Number(s):	2024/319546
Publication restriction:	Nil