Tao v Zhang

[2023] NSWLEC 1781

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tao v Zhang [2023] NSWLEC 1781

Hearing dates:

04 September 2023

Date of orders:

20 December 2023

Decision date:

20 December 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1)   The respondents, at their expense, shall employ Australian Quality Framework (AQF) level 3 arborists with all appropriate insurances (the arborists), to remove the tree from their rear yard to around ground level and poison the stump, within 90 days of the date of these orders.

(2)   The tree removal works shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(3)   The respondents shall email the applicant with at least 72 hours notice of the date and approximate start time of the tree removal works and the applicant shall allow all reasonable access for the arborists to undertake the works and to remove tree debris from the applicant's property.

(4)   The tree removal works shall be undertaken during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree deteriorating structurally – damage caused by branch failure – apprehension of further damage and risk of injury to persons – tree removal ordered

Legislation Cited:

Environmental Planning and Assessment Act 1979

Trees (Disputes between Neighbours) Act 2006, ss 7, 8, 9, 10, 12, 13

Cases Cited:

McPherson v Lake [2017] NSWLEC 1081

Reuben v Lace [2010] NSWLEC 1024

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:

Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category:

Principal judgment

Parties:

Leo Kit Tao (Applicant)
Shuran Zhang (First Respondent)
Pengxi Chen (Second Respondent)
Linyan Wu (Third Respondent)

Representation:

Counsel:
L Tao (Self-represented) (Applicant)
P Chen (Self-represented) (Respondents)

File Number(s):

2023/209831

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by applicant, Leo Kit Tao, proposing the Court order removal of a Liquidambar styraciflua (Sweet Gum) (the tree) from the rear yard of an adjacent neighbouring property. There are three respondents to the application: Shuran Zhang, Pengxi Chen, and Linyan Wu.

2. Mr Tao and the respondents share a side boundary between their properties in Eastwood. The applicant’s property is located on the eastern side of the respondents’ land, and both properties face the same avenue, to the south.

3. The tree is located close to the common boundary and about 6 m from the respondents’ rear boundary. It is a large, broad, mature tree and about 40% of its canopy overhung the applicant’s rear yard.

The onsite hearing

4. At the onsite hearing, Mr Tao was self-represented, and Ms Chen represented the respondents.

The applicant’s submission

5. Mr Tao claimed that the tree had dropped large branches on at least two occasions; in February 2020, when the trunk apex fell into the respondents’ yard, and on 12 December 2022, where 2 branches about 6…