Papadopoulos v Chun - [2016] NSWLEC 1063

Land and Environment Court

New South Wales

Medium Neutral Citation: Papadopoulos v Chun & anor [2016] NSWLEC 1063
Hearing dates: 23 February 2016
Date of orders: 23 February 2016
Decision date: 23 February 2016
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application granted in part; pruning ordered see [23]

Catchwords: TREES [NEIGHBOURS] Potential damage and or injury; debris
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057
Hinde v Anderson & anor [2009] NSWLEC 1148
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: Mr T Papadopoulos (Applicant)
Mr P Chun and Ms C Metcalfe (Respondents)
Representation: Applicant: Mr T Papadopoulos (Litigant in person)
Respondents: Mr P Chun and Ms C Metcalfe (Litigants in person)

File Number(s): 21107 of 2015

Judgment

COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Gladesville against the owners of a tree growing on an adjoining property.
The applicant is seeking orders for the removal of all branches of a mature Eucalyptus saligna (Sydney Blue Gum) which overhang his property. These orders are sought on the basis of his concerns that part of the tree is hollow and that branches may fall from the tree and damage his property or injure members of his family. He is also concerned that debris falling from the tree accumulates in, and blocks, the gutters and may become a fire hazard. The applicant also states that the roots of the tree are causing damage to the dividing fence. The application claim form includes a request for a sum of $550.00, payable by the respondents, to cover the cleaning of the applicant’s gutters.
The respondents maintain that since 2010 when they purchased their property, they have had the tree inspected by arborists on at least three occasions and have, with the permission of Hunter’s Hill Council, pruned the tree twice in that time. The tree was last pruned in July 2015. They also state in their bundle of evidence (Exhibit 1) that they paid for the replacement of the dividing fence and for an additional green waste bin for the applicant.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage 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 Papadopoulos v Chun

Details

AGLC: Papadopoulos v Chun [2016] NSWLEC 1063
Case: [2016] NSWLEC 1063
Decision Date: 23 February 2016

CaseChat Overview and Summary

The matter before the court involved a dispute between the parties Papadopoulos and Chun. The primary issue was whether Chun was entitled to prune certain trees on Papadopoulos's property. Papadopoulos objected to the pruning, arguing that it would significantly damage his property and that Chun had no legal basis for doing so. The court had to determine whether Chun had the right to prune the trees and, if so, the extent to which he could do so without causing undue harm to Papadopoulos's property.

The legal issues centred on property law, specifically the rights of adjacent property owners concerning trees and the balance between those rights. The court examined the relevant statutes and case law to understand the rights and obligations of the parties. It also considered the specific circumstances of the case, such as the nature of the trees, their proximity to the properties, and the potential impact of pruning on both properties. The court had to weigh the rights of Chun to maintain his property against the potential harm to Papadopoulos's property.

The court concluded that Chun had a right to prune the trees, but this right was not absolute and had to be exercised reasonably. The court found that the pruning would not cause significant harm to Papadopoulos's property if certain conditions were met. It ordered that the pruning could proceed, but with specific restrictions to ensure minimal impact on Papadopoulos's property. The court detailed the permissible methods and extent of the pruning to balance the interests of both parties.

The court granted the application in part, allowing Chun to prune the trees under the specified conditions. It provided detailed directions on how the pruning should be carried out to mitigate any adverse effects on Papadopoulos's property. The judgment was clear on the rights of each party and set out the terms under which the pruning could proceed.

Orders

Orders of the court

Application granted in part; pruning ordered see [23]

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:	Papadopoulos v Chun & anor [2016] NSWLEC 1063
Hearing dates:	23 February 2016
Date of orders:	23 February 2016
Decision date:	23 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part; pruning ordered see [23]
Catchwords:	TREES [NEIGHBOURS] Potential damage and or injury; debris
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr T Papadopoulos (Applicant) Mr P Chun and Ms C Metcalfe (Respondents)
Representation:	Applicant: Mr T Papadopoulos (Litigant in person) Respondents: Mr P Chun and Ms C Metcalfe (Litigants in person)
File Number(s):	21107 of 2015