Zhang v Long - [2007] NSWLEC 632

Land and Environment Court

of New South Wales

CITATION: Zhang & anor v Long & anor [2007] NSWLEC 632

PARTIES:
APPLICANTS
Rou Lan Zhang & Guo Xiong He
RESPONDENTS
Jeffery & Kathryn Long

FILE NUMBER(S): 20503 of 2007

CORAM: Moore C - Murrell C - Thyer AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Compensation v rectification
Apportionent when multiple causes of damage
Contribution because of applicants' inaction

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 22 August and 18 September 2007

DATE OF JUDGMENT:
28 September 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Kildea, barrister
INSTRUCTED BY
Jack Rigg Solicitors
RESPONDENTS
Mr M Bonanno, solicitor
McMahons National Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
MURRELL C
THYER AC

28 September 2007

07/20503 Rou Lan Zhang & Guo Xiong He v Jeffery & Kathryn Long
JUDGMENT

The consequence of the Court’s decision in this application is the making of formal Orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These formal orders are not reproduced as part of this decision but their terms are set out at the conclusion of this decision.
A copy the Court’s formal Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

The application

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The application is made by Ms Zhang and Mr He, residents of 1A Clissold St, Ashfield. The principal role taken for the applicants was undertaken by Ms Zhang and, for convenience we will refer only to her in the body of this decision.

3 The application concerns a Camphor Laurel (Cinnamomum camphora) (the tree) located near to the boundary of Ms Zhang’s property but located on the adjacent property to the west, 3 Clissold Street, owned by Mr and Ms Long (the Longs).

4 The application seeks two remedies. These are:

First, that the tree and its roots be removed; and

Second, that the Longs pay Ms Zhang $80,000 compensation for cracking and damage which she says has been caused to her dwelling because of tree root intrusion into and disturbance of the footings of her dwelling (this sum also includes a number of costs associated with the application).

The need for this determination

5 Although, as discussed below, at the site view, the Longs agreed to remove the tree at their expense, we note at the commencement of this decision that the Longs’ position of resisting, entirely, any liability whatsoever for rectification was pressed even to the final submissions of their advocate (and despite the concession on causation made by their own structural engineering expert during his evidence on the second day of the hearing).

Removal of the tree

6 As a result of discussions between the representatives…

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 Zhang v Long

Details

AGLC: Zhang v Long [2007] NSWLEC 632
Case: [2007] NSWLEC 632
Decision Date: 28 September 2007

CaseChat Overview and Summary

In Zhang v Long, the applicants, Rou Lan Zhang and Guo Xiong He, sought an order for the removal of a tree on the respondents' property, located at 3 Clissold Street, Ashfield, and compensation for damage caused to Ms Zhang's dwelling by the tree's roots. The case was heard in the Land and Environment Court of New South Wales, with the Court delivering its judgment on 28 September 2007. The Court determined that the tree should be removed, and the Longs were liable for the cost of removal. Regarding compensation, the Court found that the tree's roots had caused significant damage to the north-western corner of Ms Zhang's dwelling, but not to other parts. The Court apportioned the cost of rectification to the north-western corner between Ms Zhang and the Longs, with the Longs liable for $13,350. The Court ordered that the payment be contingent on Ms Zhang undertaking the necessary works to rectify the damage, with a three-year period to complete the works. If Ms Zhang decided to sell the property within three years without rectification, the Longs were to pay her the determined amount. The Court also ordered the Longs to reimburse Ms Zhang for the cost of two reports, totalling $1,185.

Orders