The Owners Strata Plan 77450 v Deng - [2019] NSWLEC 1654

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners Strata Plan 77450 v Deng [2019] NSWLEC 1654
Hearing dates: 18 December 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court Orders:
(1) The application is granted.
(2) The tree shall be pruned at the applicants expense in accordance with the specifications of quote STS 1634 from Sydney Tree Solutions, dated 3 February 2019.
(3) All pruning work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of Amenity Trees).
(4) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(5) Mr Deng shall provide access to his property, should it be required, for the contracted arborists to undertake these works, upon receipt of at least 48 hours written notice from the applicant, of the date and approximate time works are to commence.
(6) If these works are not completed within 6 months of the date of these orders, then Order 2 will lapse.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branches – apprehension of injury
Legislation Cited: Environmental Planning and Assessment Act 1979
Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513
Brown & anor v Weaver [2007] NSWLEC 738
Drolz v Sinclair [2008] NSWLEC 34
Yang v Scerri [2007] NSWLEC 592
Category: Principal judgment
Parties: The Owners Strata Plan 77450 (Applicant)
Zhong Deng (Respondent)
Representation: Other:
P Perryman (Agent) (Applicant)
Z Deng (self-represented) (Respondent)

File Number(s): 2019/310465
Publication restriction: No

Judgment

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

COMMISSIONER: The Owners Strata Plan 77450 (Owners) submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the pruning of a Eucalyptus Saligna (Sydney Blue Gum) (the tree), located on the boundary, but predominantly in the rear yard of the adjacent neighbouring property in Wahroonga.
The applicants contend that detached branches from the tree have caused damage, by falling onto the roof of the common property of Unit 8 of the Strata Complex causing tiles to break and crack, which subsequently allowed water to penetrate into the ceiling of Unit 8, and have also fallen onto the patio/garden area of Unit 4. They also claim that these branches pose a risk of injury to residents of Unit 4.
The Owners seek orders;

To undertake Tree Works on a Protected Tree on Common Boundary by dead wooding and reducing crown that overhangs the roof of one of our buildings to prevent damage to Common Property and Risk of Personal

Being a boundary tree, protected by Development Application (DA) conditions of consent, Ku-ring-gai Council (Council) requires permission from both property owners for an application for pruning or removal.
Mr Deng resists giving…

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.

Keep reading for free

Create a free CaseChat account to read The Owners Strata Plan 77450 v Deng and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NSWLEC 1654
Decision Date: 18 December 2019

CaseChat Overview and Summary

The Owners Strata Plan 77450, represented by the applicant, sought relief from the Supreme Court of New South Wales against the defendant, Mr Deng, regarding a tree on his property that encroached onto the applicant's land. The matter was heard by Justice Nye in the Equity Division. The applicant sought an order for the tree to be pruned in accordance with a quote from Sydney Tree Solutions, and for Mr Deng to provide access for the arborists to complete the work. The legal issues before the court involved whether the applicant had standing to bring the action and whether the court should make the orders sought. The applicant argued that the tree posed a significant risk to the safety of the residents and the property, and that the orders sought were necessary to mitigate that risk. Mr Deng argued that the applicant did not have standing to bring the action and that the orders sought were unreasonable and an improper interference with his property rights.

Justice Nye held that the applicant did have standing to bring the action as the tree posed a significant risk to the safety of the residents and the property. The court found that the orders sought were reasonable and necessary to mitigate the risk posed by the tree. The court noted that the pruning would be carried out by qualified arborists and in accordance with industry standards. The court also noted that the orders provided for reasonable access to be provided by Mr Deng and that the orders would lapse if the work was not completed within six months. The court held that the orders sought would not be an unreasonable interference with Mr Deng's property rights. The court therefore made the orders as sought by the applicant.

Orders

Orders of the court

The Court Orders:

(1) The application is granted.

(2) The tree shall be pruned at the applicants expense in accordance with the specifications of quote STS 1634 from Sydney Tree Solutions, dated 3 February 2019.

(3) All pruning work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of Amenity Trees).

(4) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(5) Mr Deng shall provide access to his property, should it be required, for the contracted arborists to undertake these works, upon receipt of at least 48 hours written notice from the applicant, of the date and approximate time works are to commence.

(6) If these works are not completed within 6 months of the date of these orders, then Order 2 will lapse.

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:	The Owners Strata Plan 77450 v Deng [2019] NSWLEC 1654
Hearing dates:	18 December 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court Orders: (1) The application is granted. (2) The tree shall be pruned at the applicants expense in accordance with the specifications of quote STS 1634 from Sydney Tree Solutions, dated 3 February 2019. (3) All pruning work is to be completed by qualified arborists (minimum AQF level 3) with appropriate insurances, and is to comply with AS4373: 2007 (Pruning of Amenity Trees). (4) All tree work must comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (5) Mr Deng shall provide access to his property, should it be required, for the contracted arborists to undertake these works, upon receipt of at least 48 hours written notice from the applicant, of the date and approximate time works are to commence. (6) If these works are not completed within 6 months of the date of these orders, then Order 2 will lapse.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from falling branches – apprehension of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513 Brown & anor v Weaver [2007] NSWLEC 738 Drolz v Sinclair [2008] NSWLEC 34 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	The Owners Strata Plan 77450 (Applicant) Zhong Deng (Respondent)
Representation:	Other: P Perryman (Agent) (Applicant) Z Deng (self-represented) (Respondent)
File Number(s):	2019/310465
Publication restriction:	No