Zada v Tang - [2023] NSWLEC 1100

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Zada v Tang [2023] NSWLEC 1100
Hearing dates: 07 December 2022
Date of orders: 08 March 2023
Decision date: 08 March 2023
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders are:
(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.
(2) During April of 2024 and during April of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.
(3) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
(4) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works
(5) The tree removal works shall be undertaken during reasonable daytime working hours.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of sunlight to a window – balancing views and privacy – no genuine damage as a result of hedge

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Pt 2 s 7, 8, 10, 12, Pt 2A s14A, 14B, 14C, 14D, 14D, 14E, 14F
Trees (Disputes Between Neighbours) Regulation 2014

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLEC 1004
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
Parramatta Development Control Plan 2011
Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016

Category: Principal judgment
Parties: George Zada (Applicant)
Jianzhong Tang (First Respondent)
Shuhong Cheng (Second Respondent)
Representation: G Zada, (Self-represented) (Applicant)
J Tang (Self-represented) (First Respondent)
S Cheng (Self-represented) (Second Respondent)

File Number(s): 2022/257643
Publication restriction: No

Judgment

COMMISSIONER: George Zada, (the applicant), and Jianzhong Tang and Shuhong Cheng, (the respondents), share a common rear boundary between their properties in Constitution Hill. The respondents occupied their property in 2008, while the applicant purchased his land in 2016, sub-divided it into three relatively wide but shallow blocks, built his dwelling on one of the blocks in 2020 and 2021, and occupied the dwelling in July 2021, soon after its completion.
Consequently, Mr Zada’s backyard, located to the north of his dwelling, is about 15 metres (m) wide but only about 6 m deep. A steel panel back fence, approximately 1.8 m tall on the applicant’s side, separates the…

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 Zada v Tang

Details

AGLC: Zada v Tang [2023] NSWLEC 1100
Case: [2023] NSWLEC 1100
Decision Date: 08 March 2023

CaseChat Overview and Summary

Zada v Tang was a dispute between two neighbours over the height of a bamboo hedge on the property boundary. The applicant, Zada, alleged that the hedge was excessively high and posed a risk to their property and safety. The matter was heard by the Local Court of New South Wales. The court was tasked with determining the appropriate height of the hedge, and whether it posed a risk to the applicant's property or safety. The court also had to determine the appropriate measures to be taken to mitigate any risks, and the costs associated with those measures.

The court considered evidence from both parties, including expert evidence from a horticulturist. The court found that the height of the hedge did pose a risk to the applicant's property and safety, and that it should be pruned to a height of no higher than 4.2 metres above ground level. The court also found that the pruning should be undertaken in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The court further found that if access to the applicant's property was required to undertake the pruning works, the applicant was required to grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works.

The court made orders that the respondents prune the hedge to a height no higher than 4.2 metres above ground level, and that they do so in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. The court also ordered that the tree removal works be undertaken during reasonable daytime working hours. The court further ordered that should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works. The court made these orders to ensure that the hedge was pruned to a safe height, and to mitigate any risk to the applicant's property or safety.

Orders

Orders of the court

The Court orders are:

(1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

(2) During April of 2024 and during April of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo.

(3) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016.

(4) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works

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

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:	Zada v Tang [2023] NSWLEC 1100
Hearing dates:	07 December 2022
Date of orders:	08 March 2023
Decision date:	08 March 2023
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders are: (1) Within 45 days of the date of these orders, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo. (2) During April of 2024 and during April of each subsequent year, the respondents, at their expense, shall prune the bamboo hedge adjacent to the common boundary, to a height no higher than 4.2 metres above ground level, measured from adjacent to the bamboo. (3) All pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access to the applicant’s property be required to undertake the pruning works, the applicant shall grant such access to the respondents, or to contracted horticulturists or arborists who hold all appropriate insurance, upon receipt of at least 48 hours’ notice by email, of the date and approximate start time of the works (5) The tree removal works shall be undertaken during reasonable daytime working hours.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – severe obstruction of sunlight to a window – balancing views and privacy – no genuine damage as a result of hedge
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Pt 2 s 7, 8, 10, 12, Pt 2A s14A, 14B, 14C, 14D, 14D, 14E, 14F Trees (Disputes Between Neighbours) Regulation 2014
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Tooth v McCombie [2011] NSWLEC 1004 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	Parramatta Development Control Plan 2011 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016
Category:	Principal judgment
Parties:	George Zada (Applicant) Jianzhong Tang (First Respondent) Shuhong Cheng (Second Respondent)
Representation:	G Zada, (Self-represented) (Applicant) J Tang (Self-represented) (First Respondent) S Cheng (Self-represented) (Second Respondent)
File Number(s):	2022/257643
Publication restriction:	No