Wong v Yu

[2017] NSWLEC 1518

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wong v Yu [2017] NSWLEC 1518
Hearing dates:	18 September 2017
Date of orders:	18 September 2017
Decision date:	18 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [12]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury, compensation’ pruning ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Mr Chun Cheung Wong (Applicant) Mr Jiang Yu (Respondent)
Representation:	Applicant: Mr C Wong (Litigant in person) Respondent: No attendance
File Number(s):	2017/157525

JUDGMENT

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a Eucalyptus saligna (Sydney Blue Gum) growing on the respondent’s adjoining Pymble property. In the event that removal is opposed, the applicant requests the removal of the large branch that overhangs his dwelling. The applicant is also claiming compensation for the costs of repairing his roof and damage to a toilet and sewer pipes; the damage to his property being allegedly caused by the respondent’s tree.

2. Apart from concerns about past and possible future damage to his property, the applicant is concerned that branches falling from the tree may injure anyone on his property.

3. Tree dispute matters are almost always set down for an on-site hearing with the hearing commencing with an inspection of the tree/ trees from the respondent’s property. In the company of the applicant, I knocked three times on the respondent’s front door and rang the doorbell three times. There was no response. I am satisfied on the basis of material on the court’s file that the respondent has been appropriately served with all necessary documents and was aware of the date and time of the hearing. I proceeded to hear the matter in his absence.

4. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

5. Given the respondent’s non-attendance, the tree could not be inspected from his property. However, I am satisfied from what could be seen from the applicant’s property that the tree the subject of the application is wholly on the respondent’s land and is a tree to which the Trees Act applies.

6. Neither party engaged an arborist to provide independent expert opinion. The following comments are based on the arboricultural expertise I bring to the court. The canopy and branch attachments were viewed from ground level and were restricted to what could be seen from the applicant’s property; I used binoculars to view the upper canopy and branch attachments.