Tho v New Horizon Health Care [2021] NSWLEC 1499

Land and Environment Court New South Wales

Medium Neutral Citation: Tho v New Horizon Health Care [2021] NSWLEC 1499 Hearing dates: 19 August 2021 Date of orders: 19 August 2021 Decision date: 19 August 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – risk of damage and injury – lack of evidence – compensation – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Richard Tho (First Applicant) Lisa Brown (Second Applicant) New Horizon Health Care (Respondent) Representation: C Lim (Agent) (Applicants) D Loether (Solicitor) (Respondent)

Solicitors: Bartier Perry (Respondent) File Number(s): 2021/130102 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. Richard Tho and Lisa Brown ('the applicants') 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 the removal of a neighbouring tree and for compensation for damage to their property. The tree is on land owned by New Horizon Health Care ('the respondent').

The hearing 1. The hearing took place online via audio-visual means. Ms Lim represented the applicants as agent, while Mr Loether, solicitor, represented the respondent. I informed the parties that I would arrange a later onsite inspection if, at the end of today's hearing, I determined that would be required for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. 2. The applicants filed no expert evidence. Ms Lim asked the Court to accept two documents at the hearing. The first was a document, author unidentified, responding to parts of a without-prejudice offer from the respondent. It was filed outside the Court's directed timeframe for filing evidence. It would not be appropriate for the Court to accept that document. The second document was a report by an engineer. It had not been filed with the Court and was not sent to the respondent. The applicants have controlled the scheduling of their application, allowing time as needed to collect evidence prior to the hearing. COVID-19 restrictions have not prevented them gathering evidence within the directed timeframes. There was no justifiable reason to allow late filing of an expert report. 3. The respondent filed a report by consulting arborist Melanie Howden, who gave oral evidence at the hearing. Ms Howden's report provided useful information given the Court's lack of an onsite view.