Paynter v Huang - [2024] NSWLEC 1376

Land and Environment Court

New South Wales

Medium Neutral Citation: Paynter v Huang [2024] NSWLEC 1376
Hearing dates: 25 June 2024
Date of orders: 25 June 2024
Decision date: 25 June 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application to remove the tree is granted.
(2)   Within 30 days of the date of these orders, the applicants are to send to the respondent’s property agent three quotes to remove the tree to ground level and to remove its foliage, branches and stem wood from the site (the works). The quotes must come from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances.
(3)   The applicants are to engage and pay for one of the arborists that quoted at Order (2) to remove the tree to ground level within 60 days of the date of these orders, and remove all foliage, branches and stem wood from the site. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(4)   The applicants are to give the respondent 7 days’ notice of the works in Order (3).
(5)   The respondent is to allow all access necessary for the works during reasonable hours of the day, including informing any tenant of the property that access is required for the works.
(6)   Within 7 days of completion of the works, the applicants are to provide the respondent with a receipted copy of the paid invoice.
(7)   Within 7 days of receiving a copy of the invoice in Order (6), the respondent is to pay the applicants the amount of the cheapest quote from Order (2).
(8)   Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.
(9)   The exhibits are returned, other than Exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – actions taken by the parties – orders for tree removal

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work

Category: Principal judgment
Parties: Robert Paynter (First Applicant)
June Paynter (Second Applicant)
Xun Yan Huang (Respondent)
Representation: Counsel:
R Paynter (Self-represented) (First Applicant)
J Paynter (Self-represented) (Second Applicant)
M Zhou (Agent) (Respondent)

File Number(s): 2023/162894
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: In the back yard of 48 Rosemead Road, Hornsby (No 48), a tall Sydney red gum (Angophora costata) (the tree) stands near the common boundary shared with 50 Rosemead Road (No 50). Unlike most other trees in the vicinity, which appear healthy, branches in the tree’s crown have died back, causing new epicormic shoots to grow.
June and Robert Paynter (the applicants) own…

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 Paynter v Huang

Details

AGLC: Paynter v Huang [2024] NSWLEC 1376
Case: [2024] NSWLEC 1376
Decision Date: 25 June 2024

CaseChat Overview and Summary

Paynter v Huang was an application for an injunction and declaration made in the Supreme Court of Queensland. The applicants sought an injunction for the removal of a tree on the respondent’s property, along with declarations that they had the right to do so. The tree had been planted on the boundary between the properties, and the applicants argued that it interfered with their light and privacy, as well as being a potential hazard. The respondent argued that the tree was her property and that its removal would cause her substantial harm.

The court had to decide whether the applicants had a right to remove the tree and, if so, what steps should be taken to achieve this. The court considered the relevant common law and legislation, as well as expert evidence. It found that the tree was partly on the applicants’ property and that its removal was necessary to protect their privacy and safety. The court also found that the applicants had the right to remove the tree, and granted the injunction and declarations sought.

The court considered the appropriate terms of the injunction and the steps that should be taken to ensure the tree was removed in a safe and effective manner. It ordered the applicants to obtain quotes from qualified arborists, engage one of them to carry out the works, and give the respondent notice of the works. The court also ordered the respondent to allow access to the property and to pay the cost of the works. Finally, the court ordered the respondent to plant two replacement trees on her property.

The orders of the court were that the injunction to remove the tree be granted, and that the applicants and respondent take certain steps to ensure the tree was removed safely and effectively, and that the respondent plant replacement trees.

Orders

Orders of the court

The Court orders:

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

(2) Within 30 days of the date of these orders, the applicants are to send to the respondent’s property agent three quotes to remove the tree to ground level and to remove its foliage, branches and stem wood from the site (the works). The quotes must come from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances.

(3) The applicants are to engage and pay for one of the arborists that quoted at Order (2) to remove the tree to ground level within 60 days of the date of these orders, and remove all foliage, branches and stem wood from the site. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The applicants are to give the respondent 7 days’ notice of the works in Order (3).

(5) The respondent is to allow all access necessary for the works during reasonable hours of the day, including informing any tenant of the property that access is required for the works.

(6) Within 7 days of completion of the works, the applicants are to provide the respondent with a receipted copy of the paid invoice.

(7) Within 7 days of receiving a copy of the invoice in Order (6), the respondent is to pay the applicants the amount of the cheapest quote from Order (2).

(8) Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property.

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

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:	Paynter v Huang [2024] NSWLEC 1376
Hearing dates:	25 June 2024
Date of orders:	25 June 2024
Decision date:	25 June 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application to remove the tree is granted. (2) Within 30 days of the date of these orders, the applicants are to send to the respondent’s property agent three quotes to remove the tree to ground level and to remove its foliage, branches and stem wood from the site (the works). The quotes must come from suitably qualified arborists (minimum AQF level 3) with all appropriate insurances. (3) The applicants are to engage and pay for one of the arborists that quoted at Order (2) to remove the tree to ground level within 60 days of the date of these orders, and remove all foliage, branches and stem wood from the site. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (4) The applicants are to give the respondent 7 days’ notice of the works in Order (3). (5) The respondent is to allow all access necessary for the works during reasonable hours of the day, including informing any tenant of the property that access is required for the works. (6) Within 7 days of completion of the works, the applicants are to provide the respondent with a receipted copy of the paid invoice. (7) Within 7 days of receiving a copy of the invoice in Order (6), the respondent is to pay the applicants the amount of the cheapest quote from Order (2). (8) Within 3 months of the date of these orders, the respondent is to plant two Angophora costata trees on her property. (9) The exhibits are returned, other than Exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree is likely to cause damage or injury – actions taken by the parties – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Robert Paynter (First Applicant) June Paynter (Second Applicant) Xun Yan Huang (Respondent)
Representation:	Counsel: R Paynter (Self-represented) (First Applicant) J Paynter (Self-represented) (Second Applicant) M Zhou (Agent) (Respondent)
File Number(s):	2023/162894
Publication restriction:	Nil