Land and Environment Court New South Wales

• Medium Neutral Citation: Strata Plan 4834 v Zhang; Strata Plan 4834 v Huynh [2012] NSWLEC 1199
• Hearing dates: 10 May 2012 and 11 July 2012
• Decision date: 11 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is upheld in part.

(2)Within 90 days of the date of these orders Mr Zhang is to engage a suitably qualified arborist (minimum AQF level 3), having all appropriate insurance, to remove the Norfolk Island Hibiscus to no more than 300 mm above ground level. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3)The applicant is to provide all access necessary for the works in (2) during reasonable hours of the day, given reasonable notice, and may supervise such access.

(4)The applicant is to serve, no later than 2 August 2012, a copy of these orders on the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah.

(5)Within 90 days of the date of these orders Ms Huynh is to engage a suitably qualified arborist (minimum AQF level 3), having all appropriate insurance, to remove the Camphor Laurel to no more than 300 mm above ground level. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6)Ms Huynh is to provide the applicant and the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah, with at least 3 working days' notice of the works in (5) and the timing of those works.

(7)The applicant and the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah, are to provide all access necessary for the works in (5) during reasonable hours of the day, and may supervise such access.

(8) The exhibits are retained.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; application upheld in part; tree removal ordered; compensation dismissed.
• Cases Cited: Kristeller v Matis [2012] NSWLEC 1027; Strata Plan 4834 v Zhang; Strata Plan 4834 v Huynh [2012] NSWLEC 1159
• Category: Principal judgment
• Parties: Strata Plan 4834 (Applicant both matters); Teng Zhang (20070 of 2012) (Respondents); Lily Huynh (20071 of 2012)
• Representation: Jennifer Borg [Agent for Strata Plan] (Applicant both matters); (20070 of 2012); Teng Zhang (Respondent in person); (20071 of 2012); Lily Huynh (Respondent in person)
• File Number(s): 20070 and 20071 of 2012

EXTEMPORE Judgment

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

Relevant background

1 ACTING COMMISSIONER: These proceedings incorporate two applications made by a Strata Plan against two separate respondents, each of whom owns neighbouring property, each with a tree on their respective property. Mr Zhang has a Norfolk Island Hibiscus on his land and Ms Huynh a Camphor Laurel on hers. Both matters were initially heard at an onsite hearing on 10 May 2012, when I found that that both trees have contributed to damage of the applicant's garage walls and that removal of both trees is required to prevent future damage. The interim judgment (Strata Plan 4834 v Zhang; Strata Plan 4834 v Huynh [2012] NSWLEC 1159) flagged that removal would be at the respondents' expense and that there would be no orders for compensation.

2 The Camphor Laurel's canopy spreads extensively above two other properties whose owners were not parties in the proceedings, and its stem appears to be located partly on one of those properties. I declined to make final orders without those property owners being provided the opportunity to be heard regarding the tree, regarding any orders for interference with the tree, and regarding property access should orders be made for interference with the tree. Directions were handed down for the applicant to serve relevant documents on the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah.

Further submissions

3 I am now satisfied that both of the additional property owners have been served with relevant documents and have chosen not to make any submissions regarding the tree or access and have chosen not to attend the resumed hearing. Consequently tree removal will be ordered and further orders will be made providing for access to the applicant's property and to the two additional properties.

4 Prior to the resumed hearing Ms Ngoy of Maclarens Lawyers, for Ms Huynh, sent further submissions to the Court regarding apportionment of the cost of tree removal. It was made clear at the initial onsite hearing that the parties had been provided with every opportunity to make submissions on all relevant matters and that the resumed hearing would only be to provide the two additional property owners with an opportunity to be heard. The applicants did not provide any additional correspondence. Consequently I did not see a need to make further consideration of later submissions. This judgment provides the opportunity to clarify the earlier findings. The Court has previously considered a respondent's limited time of property ownership when apportioning compensation, for instance in Kristeller v Matis [2012] NSWLEC 1027. Such consideration is often made when compensation is being ordered for damage that occurred partially or principally before the respondent owned the tree. In both matters before me I have considered the limited period of the respondents' ownership, along with other issues discussed in the earlier judgment, and dismissed the application for compensation. As explained in that earlier judgment, removal of both trees is being ordered not because they have caused damage, but to prevent them causing damage in future. Both respondents bought their properties with the trees in their current condition and current situation. The likelihood of the trees causing future damage existed when they bought their respective properties. It is unfortunate that they have found themselves with this burden, which is one that may have been difficult to foresee. While they may perceive unfairness in having to pay for the trees' removal, it would be more unfair, in my mind, to expect the applicant to contribute to the cost of removing the respondents' trees.

5 Mr Zhang asked that, as he is going abroad shortly, he be given 90 days to complete tree removal. Ms Borg, for the applicant, was agreeable to this timeframe.

Orders

6 As a consequence of the above, the orders of the Court are:

(1) The application is upheld in part.

(2) Within 90 days of the date of these orders Mr Zhang is to engage a suitably qualified arborist (minimum AQF level 3), having all appropriate insurance, to remove the Norfolk Island Hibiscus to no more than 300 mm above ground level. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) The applicant is to provide all access necessary for the works in (2) during reasonable hours of the day, given reasonable notice, and may supervise such access.

(4) The applicant is to serve, no later than 2 August 2012, a copy of these orders on the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah.

(5) Within 90 days of the date of these orders Ms Huynh is to engage a suitably qualified arborist (minimum AQF level 3), having all appropriate insurance, to remove the Camphor Laurel to no more than 300 mm above ground level. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(6) Ms Huynh is to provide the applicant and the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah, with at least 3 working days' notice of the works in (5) and the timing of those works.

(7) The applicant and the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah, are to provide all access necessary for the works in (5) during reasonable hours of the day, and may supervise such access.

(8) The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 26 July 2012