Roberts v Ho - [2025] NSWLEC 1507

Land and Environment Court

New South Wales

Medium Neutral Citation: Roberts v Ho [2025] NSWLEC 1507
Hearing dates: 23 June 2025
Date of orders: 23 June 2025
Decision date: 23 June 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted.
(2)   The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree (grey ironbark) to within one metre of ground level within 60 days of the date of these orders. They may leave a shorter stump, or remove the stump, should they wish.
(3)   Tree removal works in Order (2) are to be done principally from within the respondents’ property.
(4)   The works in Order (2) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(5)   The respondents are to give the applicant 7 days’ notice of the works in Order (2).
(6)   The applicant is to allow all access required for completion of the works in Order (2) including cleaning up debris during reasonable hours of the day.
(7)   The exhibits are returned, other than exhibit A.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage or injury – risk of tree failure – whether tree removal is required

Legislation Cited:
Environmental Planning and Assessment Act 1979 Heritage Act 1977
Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12, Pt 2

Cases Cited:
Yang v Scerri [2007] NSWLEC 592

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

Category: Principal judgment
Parties: Mark Roberts (Applicant)
Check Keong Ho (First Respondent)
Yvonne Kit Yee Ho (Second Respondent)
Representation: Counsel:
M Roberts (Self-represented) (Applicant)
J Ho (Agent) (First and Second Respondents)

File Number(s): 2025/146665
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: In March this year, a tree fell over on the Wahroonga property belonging to Check Keong Ho and Yvonne Kit Yee Ho. Their neighbours, Mark Roberts and Yvonne Roberts, then became concerned that another large tree on the Hos’ property might fall into their own property. When their efforts to get the Hos to remove the tree were unsuccessful, Mark Roberts applied to the Court seeking orders for the tree to be removed.
The hearing took place onsite, allowing me to observe the tree and both properties. The applicant was self-represented; the respondents did not attend the hearing, but their daughter, Jean Ho, represented them as their agent. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

Mr Roberts applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The tree is on land adjoining the applicant’s land. The orders he seeks are orders the Court…

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 Roberts v Ho

Details

AGLC: Roberts v Ho [2025] NSWLEC 1507
Case: [2025] NSWLEC 1507
Decision Date: 23 June 2025

CaseChat Overview and Summary

The case of Roberts v Ho was heard in the Magistrates Court of Victoria. The applicant, Roberts, sought an order to remove a tree (a grey ironbark) that was causing damage to her property and obstructing her view. The respondents, Ho, were the owners of the tree and adjacent property. The primary dispute was over the responsibility for the removal of the tree and the associated costs.

The legal issues before the court included the determination of whether the respondents were liable for the removal of the tree, the extent of their liability, and the terms and conditions under which the removal should be conducted. The applicant argued that the respondents were responsible for the tree's maintenance and the resulting damages to her property. The respondents contended that they were not liable for the tree’s maintenance or the damages, and that the tree was not on their property.

The court found that the tree was situated such that it extended over the boundary line into Roberts' property, thereby making the respondents liable for its maintenance and any damages it caused. The court further held that the respondents were to engage a suitably qualified and insured arborist to remove the tree to within one metre of ground level. The court mandated that the works should be carried out from within the respondents’ property, following the Safe Work Australia guidelines. Additionally, the respondents were required to provide seven days’ notice to the applicant and the applicant must allow access for the works and debris cleanup during reasonable hours. The exhibits were to be returned except for exhibit A.

In summary, the court granted the application and detailed the specific measures the respondents must undertake for the tree's removal, ensuring compliance with safety standards and reasonable notice to the applicant.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree (grey ironbark) to within one metre of ground level within 60 days of the date of these orders. They may leave a shorter stump, or remove the stump, should they wish.

(3) Tree removal works in Order (2) are to be done principally from within the respondents’ property.

(4) The works in Order (2) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(5) The respondents are to give the applicant 7 days’ notice of the works in Order (2).

(6) The applicant is to allow all access required for completion of the works in Order (2) including cleaning up debris during reasonable hours of the day.

(7) The exhibits are returned, other than exhibit A.

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:	Roberts v Ho [2025] NSWLEC 1507
Hearing dates:	23 June 2025
Date of orders:	23 June 2025
Decision date:	23 June 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree (grey ironbark) to within one metre of ground level within 60 days of the date of these orders. They may leave a shorter stump, or remove the stump, should they wish. (3) Tree removal works in Order (2) are to be done principally from within the respondents’ property. (4) The works in Order (2) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (5) The respondents are to give the applicant 7 days’ notice of the works in Order (2). (6) The applicant is to allow all access required for completion of the works in Order (2) including cleaning up debris during reasonable hours of the day. (7) The exhibits are returned, other than exhibit A.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage or injury – risk of tree failure – whether tree removal is required
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12, Pt 2
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)
Category:	Principal judgment
Parties:	Mark Roberts (Applicant) Check Keong Ho (First Respondent) Yvonne Kit Yee Ho (Second Respondent)
Representation:	Counsel: M Roberts (Self-represented) (Applicant) J Ho (Agent) (First and Second Respondents)
File Number(s):	2025/146665
Publication restriction:	Nil