Land and Environment Court New South Wales Medium Neutral Citation: Hui v Gu [2021] NSWLEC 1335 Hearing dates: 31 May 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [27] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – trees have caused damage – orders to remove two trees – orders to replace fence – reimbursement for half of survey cost – remainder of application dismissed Legislation Cited: Dividing Fences Act 1991, s 13A Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12 Texts Cited: Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work' Category: Principal judgment Parties: Fong C Hui (First Applicant) Yuk K Lo (Second Applicant) Charles Gu (First Respondent) Ronnie Ji (Second Respondent) Representation: F C Hui (Litigant in Person) (First Applicant) D Hui (Agent) (Second Applicant) C Gu (Litigant in Person) (First Respondent) R Ji (Litigant in Person) (Second Respondent) File Number(s): 2021/43012 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background to the application 1. This dispute between neighbours in Epping has, at its core, a fence along a common boundary, and vegetation alongside the fence, but has become clouded by other issues over the years. To resolve this dispute as much as might be possible, the Court can make orders to deal with the fence and vegetation, but cannot make orders to address some of the surrounding issues. 2. Fong Hui and Yuk Lo have applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for replacement of the fence along the common boundary they share with their neighbours, Charles Gu and Ronnie Ji ('the respondents'), with the cost of the fence shared by the parties. They also want orders for the respondents to remove all overhanging branches and trees that might obstruct fence installation, along with all trees on the respondents' property within 3.5 metres of the applicants' dwelling. They also want reimbursement of costs for an earlier application made to the NSW Civil and Administrative Tribunal ('NCAT'), the cost of making this application to the Land and Environment Court, for medical costs, and for the cost of a boundary survey. 3. The respondents agree that the boundary fence needs replacing but refute the other elements of this application. They recently replaced the fence along the boundary on the other side of their property, a process they say was straightforward. They have an agreement with another neighbour to replace the fence further along the boundary that is the subject of this application, where it is shared with that neighbour. The respondents have been unable to resolve the other issues surrounding the replacement of this remaining section of their boundary fence. 4. A new fence is the agreed outcome, but a path to get there has not been found. Both parties have obtained quotes to demolish the existing paling fence along their common boundary and replace it with a Colourbond fence. With surrounding issues unresolved, the applicants applied to NCAT seeking to resolve the matter. NCAT's orders of 5 January 2021 simply stated: "1. The application is withdrawn in accordance with the NCAT ACT." Below the order was a Note: "The respondent maintained the trees between [the two properties] are not on or near the dividing fence boundary. Surveyors report is required." Framework for this decision 1. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made reasonable effort to reach agreement with the owners of the land on which the tree is situated (s 10(1)(a) of the Trees Act). 2. Before making orders for any tree, the Court must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to any person (s 10(2) of the Trees Act). Then, before making orders, the Court must consider the matters at s 12. The applicants made reasonable effort 1. The earlier application to NCAT, and other steps taken by the applicants, satisfy me that they have made reasonable efforts to reach agreement with the respondents. The trees 1. On the respondents' side of the boundary, close to the fence, two trees grow in their front setback, while beside and to the rear of their dwelling are dense groups of small trees and shrubs. In the front are a crape myrtle ('T1' in the application) within a metre of the front boundary, and a sweet pittosporum ('T2') a further metre from the front boundary. Trees further back are numbered 'T3–T8' in the application. Near those trees is a young Canary Islands Date Palm growing close to the fence. 2. The applicants later added T9, which is beyond their section of the common boundary. Later still, they added a few small trees in the front setback – trees they say were planted by the respondents since the application was made. They appear to be rose bushes or similar that have grown here for several years. The fence 1. For most of its length the fence is a 1.8 metre paling fence in a rather dilapidated condition. Near the front of the applicants' dwelling, the height of the fence gradually decreases towards what was once a shorter section of the fence near the front boundary, but this section has been absent for many years. A photograph taken 15 years ago shows only the bottom rail remaining. One old fence post remains against the stem of the sweet pittosporum (T2). Damage 1. The applicants say the crape myrtle (T1) will damage the service wires to their dwelling. The respondents pointed out that one wire that passes through branches is a disused internet cable, replaced by underground NBN. The other cable, which appears to supply electricity, is clear of branches. The applicants say this is because they have pruned the tree, something they should not have to do. No damage has occurred to the wire, and none is likely to occur in the near future, so no orders will be made on this element of the application. 2. The crape myrtle has not damaged the fence. The pittosporum may have damaged part of the fence years ago, but this cannot be determined. Small branches of trees and shrubs T3–T8 have contributed to damage along the top of the fence, loosening some palings where they have grown between them. Minor though the damage is, this finding satisfies the jurisdictional test at s 10(2)(a)(1) of the Trees Act, so orders can be made to repair that part of the fence. It follows from s 13A of the Dividing Fences Act 1991 that orders can therefore extend to the entirety of the fence along the common boundary. 3. The applicants submitted that trees near the boundary, especially near the back of their property, are likely to damage their sewer or stormwater pipes. They pointed out the general area of their pipes. They added tree T9 to their application because of their concerns. They did not suggest any damage has occurred. They did not show me anything to indicate damage is likely in the near future. The applicants simply want trees removed because they might cause damage. However, the Court cannot make any orders on this element of their application unless it is satisfied that damage is likely in the near future. Lacking any evidence to demonstrate this, I cannot be satisfied that damage is likely, so I will not make orders on this element of the application. Injury 1. Ms Lo claims to have suffered injury to her mental health as a result of the trees. In support of this she filed statements and letters from a psychologist, doctor and the pastor of her church, all of whom referred to the ongoing dispute as the cause of her stress. Ms Lo also filed receipts for drugs she requires. 2. I do not doubt that the situation has caused Ms Lo significant stress, but I saw nothing about these trees to identify them as the cause of her stress. They are all small trees, unlikely to cause any significant damage or injury. They have caused some very minor damage that can be readily fixed. There is nothing inherently stressful about these trees. Rather, and as Mr Hui submitted during the hearing, it seems to be the ongoing dispute between these neighbours that has contributed to her stress. Feelings that arise from a personal dispute or disagreement cannot be regarded as injury caused by trees. 3. For this reason, no orders can be made on the element of this application relating to injury, or the impacts of the trees, past, present or future, on Ms Lo's mental health. 4. Ms Lo's application for reimbursement of medical expenses is not an order that the Court can make, as any orders for compensation at s 9 of the Trees Act are limited to compensation for damage, not injury. The survey plan and NCAT hearing 1. According to the applicants, their application at NCAT failed because the respondents would not admit that their vegetation might spread across the common boundary. In their application to this Court, the applicants provided a lengthy quote supposedly from the NCAT hearing, including questions and comments from the NCAT member. When I asked if they had obtained a copy of the hearing's transcript, Derek Hui answered that they had not; rather, the quote was based on his notes. The applicants appear to have misunderstood the note that accompanied NCAT's orders, taking it to mean that a boundary survey was required to determine whether any vegetation, including branches well above fence height, extended across the boundary. They claimed that the respondents were to pay for the survey if it was found that any vegetation did extend across the boundary, but this was not suggested in NCAT's note. I find it more likely that the NCAT member's suggestion for a survey was to assist the parties to determine whether vegetation that might obstruct installation of the fence must first be removed. It could be seen onsite that the crape myrtle, for instance, has branches above the applicants' property, but its stem would not prevent installation of the fence. 2. The matter at NCAT was dealt with there as much as it might be. There is no reason for this Court to make any orders in relation to the outcome of the NCAT hearing. Costs of that hearing cannot be reimbursed by this Court. Reimbursement of costs 1. The applicants sought reimbursement of costs for the NCAT hearing, medical expenses and the survey plan they have obtained. I have addressed the issues of medical expenses and the NCAT hearing above. Although the applicants' reasons for recently commissioning a survey plan were perhaps misguided, the survey plan, a copy of which was included in their application, has proven useful. It shows that the existing fence is slightly to the respondents' side of the common boundary. It displays the stem diameters of trees, and offsets from tree centres to the boundary. It shows that the crape myrtle could be retained if the fence is on the boundary, whereas visually lining up the existing fence to the brick pillar at the end of the respondents' front fence suggests this tree might need to be removed. This favours the respondents, who wish to retain this tree. 2. When ordering boundary fence works, the Court sometimes includes orders for a survey to be obtained. The cost of this would normally be shared by the parties. The applicants' recent survey avoids the need for this. Because of the assistance it provides to resolving this dispute, it would be appropriate to share the costs of that survey between the parties, so I will order the respondents to reimburse the applicants 50% of the survey costs. Tree removal 1. The survey also shows that only a small gap would remain between the pittosporum (T2) and a new fence built on the boundary. Unlike the mature crape myrtle, which is now growing slowly, the pittosporum is still young and growing more vigorously. It would grow against, and damage, the new fence in the foreseeable future. Its removal would prevent this. Considering the tree's low amenity value, and its weed potential, it does not justify changes to the fence to allow for its retention. Orders will be made for its removal. Further along the fence the young Canary Islands Date Palm, most likely self-sown, is also likely to damage a new fence in the foreseeable future, as it grows close to the boundary. Orders will also be made for its removal. The respondents will be responsible for removing these two trees prior to commencement of the fencing works. Council permission is not required for tree removal ordered by the Court (s 6(3) of the Trees Act). Any other vegetation removal required for fence installation can be done by the fencing contractor during the fencing works. 2. The applicants sought orders to remove all vegetation near the fence, as well as all trees within 3.5 metres of their dwelling, the latter order based on council guidelines for planting trees. The applicants submitted that, apart from any damage these trees might cause, they are a nuisance. There are no grounds for the Court to make those orders at s 9 of the Trees Act. Nor are there any grounds for preventing the respondents planting trees as they wish on their property. Conclusion 1. The parties agree that a new fence is required. The orders below provide for a new fence, with its cost shared by the parties. Orders address relevant related issues, but the Court cannot resolve all issues raised by the applicants. 2. The quotes already obtained for fencing works require updating: the respondents' preferred contractor quoted more than 12 months ago; the applicants' preferred quote is included only as a copy of an email in their application, so a formal quote is needed. 3. Minor disagreement between the parties remained as to the height (0.9 metres or 1.2 metres) of the section of fence closest to the front boundary, and as to the fence's colour (charcoal grey or mist green). The respondents recently replaced the fence on their other boundary, so orders for fencing works will match the new fence to that fence. No similar fence that might require matching exists on the applicants' property. Orders 1. For the reasons described above, the Court orders: 1. The application is granted only to the extent of the orders below. 2. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the pittosporum (T2 in the application) next to the common boundary in their front setback and the small palm next to the common boundary alongside their dwelling. Both trees are to be removed to within 200 mm of ground level. The works are to be done in accordance with 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. 3. Within 7 days of the date of these orders the respondents are to obtain a quote from B-Smart fencing for the fencing works in Order (5). 4. Within 7 days of the date of these orders the applicants are to obtain a quote from RHS fencing for the fencing works in Order (5). 5. The fencing works to be quoted are as follows: 1. Demolish and remove the existing fence along the common boundary shared by the applicants and the respondents. 2. Construct a Colourbond fence along the approximately 28-metre common boundary shared by the applicants and the respondents as shown on the survey sketch of 28/02/2021 by Innovative Surveying Associates, with the first two panels from the front boundary to be 0.9 metres in height, then sloping up to a 1.8-metre fence along the remainder of the boundary. 3. The fence is to be charcoal grey in colour to match the fence on the respondents' other side boundary. 4. Any vegetation along or adjacent to the boundary that requires clearing for the fencing works is to be removed by the contractor, other than the two trees in Order (2). 1. Within 14 days of the date of these orders the parties are to select the cheapest of the two quotes from Orders (3) and (4), unless they otherwise agree on the other quote. The parties are to engage the selected contractor under a fencing agreement, in which the applicants agree to pay 50% of the cost of the works and the respondents agree to pay 50% of the cost of the works, to carry out the fencing works in Order (5) within 90 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement. 2. The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day. 3. Within 7 days of completion of the fencing works, the respondents are to pay the applicants $412.50, being half the costs of a completed survey. 4. The exhibits are returned, except for Exhibit A. ………………………………. D Galwey Acting Commissioner of the Court ********** Amendments 11 June 2021 - Added extemporaneous disclaimer at the beginning of the judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2021