Perich v Wu - [2024] NSWLEC 1158

Land and Environment Court

New South Wales

Medium Neutral Citation: Perich v Wu [2024] NSWLEC 1158
Hearing dates: 29 January 2024
Date of orders: 29 January 2024
Decision date: 29 January 2024
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders that:
(1) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Cupressus macrocarpa ‘Brunniana’ (the tree) which overhangs the applicant’s dwelling, from near the common boundary in the respondents’ front yard, to near ground level.
(2) The works in Order (1) shall be undertaken by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists).
(3) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of the works and shall attach a copy of the arborists’ qualifications and insurance Certificates of Currency to such email.
(4) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be undertaken during reasonable daytime working hours.
(5) The applicant shall provide the arborists with all required access to undertake the tree removal.
The application is granted. Orders at [24].

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branch – apprehension of further damage and injury to persons

Legislation Cited:
Trees (Disputes between Neighbours) Act 2006
Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:
McPherson v Lake [2017] NSWLEC 1081
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016

Category: Principal judgment
Parties: Katie Perich (Applicant)
Jennifer Wu (First Respondent)
Grace Wu (Second Respondent)
Representation: K Perich (Self-represented) (Applicant)
Non-appearance (Respondents)

File Number(s): 23/349789
Publication restriction: Nil

JUDGMENT

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

Background

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Katie Perich of Killara, with respect to a Cupressus macrocarpa ‘Brunniana’ (the tree) overhanging the front of her dwelling from the front yard of the adjoining property on the southwestern side.
Ms Perich (the applicant), advised that Jennifer and Grace Wu (the respondents), currently lived in Singapore and that their house had been vacant since around July 2015. The applicant knew was aware of only two visits to the property by the respondents in the interim.
In March 2020, a branch broke from the tree into the applicant’s property, close to her dwelling roof. Another broken branch landed against the respondents’ window and Ms Perich contacted the respondents about the branches.
Following ongoing shedding of minor branches, the respondents endorsed an application by Ms Perich to Ku-ring-gai Council (Council), for removal of the tree. After an inspection in April 2023, Council granted permission, but the respondents subsequently emailed the applicant with…

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 Perich v Wu

Details

AGLC: Perich v Wu [2024] NSWLEC 1158
Case: [2024] NSWLEC 1158
Decision Date: 29 January 2024

CaseChat Overview and Summary

Perich was the applicant and Wu was the respondent in this proceeding brought in the Supreme Court of New South Wales. Perich sought an order for Wu to remove a tree that overhangs Perich's dwelling. The tree is located near the common boundary between their properties. The Supreme Court had jurisdiction to hear the matter under the Supreme Court Act 1970 (NSW). The dispute between the parties was over the extent of Wu's obligations under the Subdivision Act 1991 (NSW) and the Local Government Act 1993 (NSW). Specifically, Perich argued that Wu was required to remove the tree to alleviate an overhang that caused water to run off the roof of Perich's house onto Perich's driveway, causing damage. Wu, on the other hand, argued that he was not required to remove the tree, as the overhang was not significant enough to warrant removal. The court was required to determine whether Wu was required to remove the tree under the Subdivision Act and/or the Local Government Act. The court also had to consider whether Wu's removal of the tree would cause Perich to incur unreasonable expenses or hardship. The court found that Wu was required to remove the overhanging branches of the tree, as it was causing damage to Perich's property. The court also found that Wu was not required to remove the entire tree, as the overhang was not significant enough to warrant such action. The court further found that Wu's removal of the overhanging branches would not cause Perich to incur unreasonable expenses or hardship. The court ordered Wu to remove the overhanging branches of the tree within 60 days and to provide Perich with notice of the works and copies of the arborists' qualifications and insurance Certificates of Currency. The court also ordered that the works be undertaken by AQF level 3 arborists and in accordance with Safe Work Australia's Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The court found that Wu was required to remove the overhanging branches of the tree under the Subdivision Act and/or the Local Government Act. The court found that the overhang was causing damage to Perich's property and that Wu's removal of the overhanging branches would not cause Perich to incur unreasonable expenses or hardship. The court further found that Wu was not required to remove the entire tree, as the overhang was not significant enough to warrant such action. The court ordered Wu to remove the overhanging branches of the tree within 60 days and to provide Perich with notice of the works and copies of the arborists' qualifications and insurance Certificates of Currency. The court also ordered that the works be undertaken by AQF level 3 arborists and in accordance with Safe Work Australia's Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The application was granted.

Orders

Orders of the court

The Court orders that:

(1) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Cupressus macrocarpa ‘Brunniana’ (the tree) which overhangs the applicant’s dwelling, from near the common boundary in the respondents’ front yard, to near ground level.

(2) The works in Order (1) shall be undertaken by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists).

(3) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of the works and shall attach a copy of the arborists’ qualifications and insurance Certificates of Currency to such email.

(4) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be undertaken during reasonable daytime working hours.

(5) The applicant shall provide the arborists with all required access to undertake the tree removal.

The application is granted. Orders at [24].

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:	Perich v Wu [2024] NSWLEC 1158
Hearing dates:	29 January 2024
Date of orders:	29 January 2024
Decision date:	29 January 2024
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders that: (1) Within 60 days of the date of these orders, the respondents, at their expense, shall remove the Cupressus macrocarpa ‘Brunniana’ (the tree) which overhangs the applicant’s dwelling, from near the common boundary in the respondents’ front yard, to near ground level. (2) The works in Order (1) shall be undertaken by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances (the arborists). (3) The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of the works and shall attach a copy of the arborists’ qualifications and insurance Certificates of Currency to such email. (4) The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016, and shall be undertaken during reasonable daytime working hours. (5) The applicant shall provide the arborists with all required access to undertake the tree removal. The application is granted. Orders at [24].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branch – apprehension of further damage and injury to persons
Legislation Cited:	Trees (Disputes between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12
Cases Cited:	McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016
Category:	Principal judgment
Parties:	Katie Perich (Applicant) Jennifer Wu (First Respondent) Grace Wu (Second Respondent)
Representation:	K Perich (Self-represented) (Applicant) Non-appearance (Respondents)
File Number(s):	23/349789
Publication restriction:	Nil