Zhang v Mercer

[2020] NSWLEC 1415

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Mercer [2020] NSWLEC 1415

Hearing dates:

11 August 2020

Date of orders:

11 August 2020

Decision date:

11 August 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Uniform Civil Procedures Rules 2005

Cases Cited:

Awad v Hardie (No 2) [2010] NSWLEC 1258

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Dooley v Newell [2007] NSWLEC 715

Immarrata v Mourikis [2007] NSWLEC 601

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373-2007 Pruning of Amenity Trees

Category:

Principal judgment

Parties:

Hong Zhang (Applicant)
Lynette Mercer (Respondent)

Representation:

H Zhang (Litigant in person) (Applicant)
L Mercer (Litigant in person) (Respondent)

File Number(s):

2020/133918

Publication restriction:

No

Judgment

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

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Zhang, relating to a Corymbia citriodora (Lemon Scented Gum) (the tree) located in the adjacent neighbouring property.

Background

2. Ms Zhang (the applicant) and Ms Mercer (the respondent), share a side boundary between their properties in Blacktown. The applicant’s property is located on the western side of the respondent’s, and both properties face south towards the same street.

3. Ms Mercer and her late husband, purchased and occupied their property 38 years ago, at which point the tree (T1), and a second Lemon Scented Gum (T2), were already well established in the front yard. T1 is located about one metre from the boundary shared with Ms Zhang, while T2 is close to the middle of the front yard. A third smooth-bark gum tree (T3), of indeterminate species, was, to the best of Ms Mercer’s recollection, self-sown many years later in the front yard of her eastern side neighbour, close to both the adjoining, and front boundaries. A photograph (photo), supplied by Ms Zhang, displays the three trees, with T3 positioned in close proximity to a path, apparently constructed from rough-hewn sandstone paving and mortar. T3 was reported to have been uprooted during a storm on 8 January 2018, and Ms Zhang supplied photos which display the residual trunk and roots from this tree.

The onsite hearing

4. Being open to the street, both properties were accessible for simultaneous inspection. Both parties attended the hearing, and Ms Zhang was joined by a supportive friend who, appropriately, did not offer comment or opinion.

5. The common boundary is delineated by a garden bed, about 0.6 metres wide, on the respondent’s side. This garden abuts Ms Zhang’s driveway, which is two to three metres wide, is located parallel to the boundary, and terminates under a carport, which adjoins the eastern side of her house.

6. T1 and T2 are mature.…