The Owners - Strata Plan 94255 v Luu - [2022] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation: The Owners – Strata Plan 94255 v Luu [2022] NSWLEC 1265
Hearing dates: 18 May 2022
Date of orders: 18 May 2022
Decision date: 18 May 2022
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders that:
(1) The application is granted.
(2) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove both trees T1 and T2 to no more than one metre above ground level within 60 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3) The Respondents are to provide the Applicant with at least 2 days’ notice of the works.
(4) The Applicant is to provide any access, other than access for heavy trucks and equipment in the driveway, required to complete the works during reasonable hours of the day.
(5) Within 90 days of the date of these orders the Respondents are to plant two native trees on their property at least 2 metres from any boundary.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to property – debris – risk of injury – removal of two trees – who should pay for tree removal

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

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513

Category: Principal judgment
Parties: The Owners – Strata Plan 94255 (Applicant)
Bich Ngoc Luu (First Respondent)
Xieu Kien Luu (Second Respondent)
Representation: Counsel:
C Lim (Agent) (Applicant)
B Luu (Self-represented and Agent) (First and Second Respondents)

File Number(s): 2022/74583
Publication restriction: No

Judgment

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

Background to the application

Acting Commissioner: Bich Ngoc Luu (Ms Luu) and her mother Xieu Kien Luu (together the Respondents) own a residential property in Cabramatta. The single dwelling is surrounded by a large garden area. Several mature eucalypts stand in the back yard, two of them close to the side boundary near the back, north-eastern corner of the yard. Christina Lim owns four townhouses on the large adjoining property to the north, part of Strata Plan 94255 (the Owners of Strata Plan 94255 are the Applicant).
Two or three years ago Ms Lim developed the northern property with eight townhouses. The townhouse in the property’s south-eastern corner sits beneath the Luus’ two large eucalypts, with the trees’ branches and foliage touching its roof. Leaves and other debris cover the roof guttering and parts of the roof. Blocked gutters resulted in water overflowing into the ceiling space, causing water damage to the ceiling. Branches have fallen into the townhouse’s garden; one branch damaged the clothesline. A new clothesline was installed away from the trees.
Ms Lim asked the Luus to…

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 94255 v Luu 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: [2022] NSWLEC 1265
Decision Date: 18 May 2022

CaseChat Overview and Summary

The Owners – Strata Plan 94255 commenced proceedings against Luu, a resident of a strata scheme, in the Supreme Court of New South Wales. The dispute centred around two trees, T1 and T2, located on the Respondents’ property, which were causing damage to the Applicant’s property and affecting their enjoyment of their own property. The Applicant sought an order for the removal of the trees and for the Respondents to replace them with two native trees.

The primary legal issue before the Court was whether the Applicant was entitled to an order compelling the Respondents to remove the trees and replace them with native trees. The Court had to consider the rights and obligations of the parties under the relevant legislation, the Strata Schemes Management Act 2015, and the common law principles of nuisance and equitable servitudes. The Court also had to determine whether the removal and replacement of the trees would be a reasonable and proportionate response to the dispute.

The Court held that the Applicant was entitled to an order for the removal of the trees and for the Respondents to replace them with native trees. The Court found that the trees were causing damage to the Applicant’s property and affecting their enjoyment of their own property, which constituted a nuisance and a breach of the equitable servitudes that apply to strata properties. The Court held that the removal and replacement of the trees was a reasonable and proportionate response to the dispute, and that the Applicant’s rights under the legislation and the common law outweighed the Respondents’ rights to enjoy their own property. The Court made orders for the removal of the trees and for the Respondents to replace them with native trees, with specific requirements for the timing, method, and notice of the works.

In summary, the Court granted the Applicant’s application for an order compelling the Respondents to remove the trees and replace them with native trees. The Court found that the Applicant was entitled to relief on the basis of nuisance and equitable servitudes, and that the removal and replacement of the trees was a reasonable and proportionate response to the dispute. The Court made detailed orders for the timing, method, and notice of the works, as well as for the replacement of the trees.

Orders

Orders of the court

The Court orders that:

(1) The application is granted.

(2) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove both trees T1 and T2 to no more than one metre above ground level within 60 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) The Respondents are to provide the Applicant with at least 2 days’ notice of the works.

(4) The Applicant is to provide any access, other than access for heavy trucks and equipment in the driveway, required to complete the works during reasonable hours of the day.

(5) Within 90 days of the date of these orders the Respondents are to plant two native trees on their property at least 2 metres from any boundary.

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 94255 v Luu [2022] NSWLEC 1265
Hearing dates:	18 May 2022
Date of orders:	18 May 2022
Decision date:	18 May 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders that: (1) The application is granted. (2) The Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove both trees T1 and T2 to no more than one metre above ground level within 60 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) The Respondents are to provide the Applicant with at least 2 days’ notice of the works. (4) The Applicant is to provide any access, other than access for heavy trucks and equipment in the driveway, required to complete the works during reasonable hours of the day. (5) Within 90 days of the date of these orders the Respondents are to plant two native trees on their property at least 2 metres from any boundary.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to property – debris – risk of injury – removal of two trees – who should pay for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	The Owners – Strata Plan 94255 (Applicant) Bich Ngoc Luu (First Respondent) Xieu Kien Luu (Second Respondent)
Representation:	Counsel: C Lim (Agent) (Applicant) B Luu (Self-represented and Agent) (First and Second Respondents)
File Number(s):	2022/74583
Publication restriction:	No