Nott v Leung; Chu v Leung

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Nott v Leung; Chu v Leung [2019] NSWLEC 1394

Hearing dates:

18 June 2019

Date of orders:

16 August 2019

Decision date:

16 August 2019

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

 

Proceedings 2019/55091

 

(1)   The application to remove the tree is refused.

 

Proceedings 2019/55250

 (1)   The application to remove the tree is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications concerning one tree – whether there must be a dispute – council refused application to remove a tree – tree owner did not appeal council decision – risk of damage or injury – applicants have not demonstrated that the tree has damaged or is likely to damage property, or is likely to cause injury – arboricultural evidence not consistent with observations

Legislation Cited:

Civil Liability Act 2002 (NSW)
Trees (Disputes Between Neighbours) Act 2006 (NSW)

Cases Cited:

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592

Texts Cited:

New South Wales, Parliamentary Debates, Legislative Council, 18 May 2010 (Bob Debus)
Parliamentary Counsel’s Office (WA), How to read legislation, a beginner’s guide (May 2011)

Category:

Principal judgment

Parties:

Proceedings 2019/55091

 

Murray Nott (First Applicant)
Frances Lorraine Nott (Second Applicant)
Kin-Chuen Leung (First Respondent)
Wai Ching Leung (nee Ip) (Second Respondent)
Hornsby Shire Council (Interested Party)

 

Proceedings 2019/55250

  Sau Han Chu (First Applicant)
Choi Wai Tong (Second Applicant)
Kin-Chuen Leung (First Respondent)
Wai Ching Leung (nee Ip) (Second Respondent)
Hornsby Shire Council (Interested Party)

Representation:

Proceedings 2019/55091

 

Counsel:
M Nott (Applicants) (self-represented)
K C Leung (First Respondent) (self-represented)
W C Leung (Second Respondent) (self-represented)
T Pickup (Solicitor) (Interested Party)

 

Solicitors:
Local Government Legal (Interested Party)

 

Proceedings 2019/55250

 

Counsel:
M Nott (Solicitor) (Applicants)
K C Leung (First Respondent) (self-represented)
W C Leung (Second Respondent) (self-represented)
T Pickup (Solicitor) (Interested Party)

  Solicitors:
Murray J Nott Solicitor (Applicants)
Local Government Legal (Interested Party)

File Number(s):

2019/55091; 2019/55250

Publication restriction:

No

Judgment

The applications

1. Here are two applications concerning the same tree, made by separate applicants. They have all the usual elements of applications made to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the ‘Trees Act’) – a tree, neighbours, concerns of damage or injury – bar one: a dispute between neighbours. The respondents and both pairs of applicants all agree that the tree should be removed at the respondents’ expense.

2. How to read legislation, a beginner’s guide, is an informative text prepared by the West Australian Parliamentary Counsel’s Office (the ‘WA guide’). On page 7 it says:

“The titles of the various pieces of legislation give a general idea of what they are about.”

The title of the Trees Act suggests a dispute might be central to its purpose.

3. On pages 15-16, the WA guide says:

“Understanding what its purpose or object is may be helped by things such as the long title (in an Act) and provisions (if any) that set out…