Hsu-Kam v Yu [2021] NSWLEC 1789

Land and Environment Court New South Wales

Medium Neutral Citation: Hsu-Kam v Yu [2021] NSWLEC 1789 Hearing dates: 2 September 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – apprehension of damage and injury –– application dismissed Legislation Cited: Heritage Act 1977 Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Uniform Civil Procedure Rules 2005, Sch 7 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Information Sheet 9.1 Heritage Gardens and Grounds Safe Work Australia 'Guide to managing risks of tree trimming and removal work, 2016 Workcover NSW Code of Practice for the amenity tree industry 1998 Category: Principal judgment Parties: Patty Hsu-Kam (Applicant) Zuhong Yu (First Respondent) Yawen Huang (Second Respondent) Representation: Counsel: P Hsu-Kam (Litigant in person) (Applicant) D Zhou (Solicitor) (Respondents)

Solicitors: Orbis Legal (Respondents) File Number(s): 2021/165141 Publication restriction: Nil

Judgment 1. COMMISSIONER: Ms Hsu-Kam, the applicant, and Mr Zuhong Yu & Ms Yawen Huang, the respondents, share four boundaries, which in combination display a zig-zag pattern, between their properties in Wahroonga. The respondents occupied their property in December 2015. 2. There are 45 trees at issue in this application, the majority of which are growing as part of three hedges, within the respondents' property. Trees (T)1-T12 form a Camellia hedge, running north-south, which is said to be about 6.5 metres tall. This is Hedge 1. T13-T16 (Hedge 2) is also comprised of Camellia's, growing perpendicular to Hedge 1, in an east-west orientation. This is reported as 8 metres tall. T17-T20 are growing as an informal extension of Hedge 2, within the same row, and roughly parallel to the same boundary as Hedge 2. 3. T17 is a Privet tree, noted as 12 metres tall, T18 is described as a Camellia offshoot growing horizontally, T19 is a palm, and T20 is a Privet sapling. T21-T42 (Hedge 3), comprises 22 x Cupressocyparis leylandii (Leyland Cypress), which are growing in a roughly north-south line, parallel to Hedge 1, and perpendicular to Hedge 2. These Cypress are said to be 12 metres tall. 4. Running perpendicular from the southern end of Hedge 3, in a westerly direction, is a fourth boundary between the properties. Here, T43 is a Privet, about 5.5 metres tall, T44 is a Jacaranda, estimated as 6 metres, and T45 is another Privet, said to be 8 metres tall. All the Privet trees are self-sown, and the applicant claims that the palm and Jacaranda are also. 5. Ms Hsu-Kam has submitted an application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking 12 orders. In particular, she wants the hedges to be pruned down to a manageable and safe height, less than 3.5 metres high, and for the hedge width to be pruned, so they are at least 300mm clear from the shared property boundaries. 6. The orders which Ms Hsu-Kam seeks are as follows: "1. Prune both height and width of all hedges from T1 to T45 every 6-12 months to keep the hedges healthy, full and contained within the neighbours' boundaries. 2. Reduce height of T1 to T45 to keep to a safe height of 3 metres when pruned and not allowed to exceed 3.5 metres with growth and the width pruned back 30cm from the fence line and kept behind the fence line within neighbours' boundaries. 3. Remove noxious weeds such as Privets (T17, T20, T43, T45) and self-seeded saplings like the Jacaranda Tree (T44) and palm pod (T19). These self-seeded saplings are random placements with no consideration to future ramifications when fully grown. In addition, their removal would be consistent to the maintenance of a heritage protected garden. 4. Permission to remove self-seeded saplings that are found during maintenance to keep in line with heritage garden maintenance. 5. If removal is not granted for point 3 and 4, we ask that all plants, trees and vegetation be reduced in height to 3 metres and not to exceed 3.5 metres with growth and pruned back in width 30cm behind the fence line and all plants, trees and vegetation be contained within the boundary lines. 6. Initial reduction of height and width of hedges (T1 to T45) to be paid by the neighbours who are the owners of hedge as many requests were put forward to reduce their height which were denied. Specialist Tree Arborists are now required to maintain trees/hedge using specialised equipment for such heights which is an unnecessary cost that could have been avoided. 7. Grant access to the hedges by crossing the fence/boundary line for maintenance of both height and width of the hedges. 8. Removal of all animals from pruning site during time of works. Notice will be given 1 week prior to works starting. 9. Allow all plants, trees and vegetation crossing common fence line/boundary to be pruned back to 30cm behind fence line and reduce the height to 3 metres and not exceed 3.5 metres with growth. 10. Fill gaps between T13 to T20 with 4 mature Camellia japonica plants at least 2 metres high to be planted 2.5 metres behind fence line of similar flower colour and characteristic of surrounding hedge and spaced evenly. 11. Physical screening to lower half of Leighton Cypress hedge (to) compensate for the hollowed out bottoms which has damaged the screening function of the trees. 12. Action court order within 14 working days" 1. A typographical error was made in the applicant's submission where two consecutive orders were designated as Order 5. I have adjusted the latter of these to Order 6. In their alternative orders (below), the respondents have retained both Orders 5, and highlighted the error. 2. The respondents seek the following orders, in response: "1. That orders 1, 2, 3, 5, 5 [sic], 6, 7, 8, and 11 in the applicant's application to be dismissed. 2. That the applicant at her own cost, carry out orders 9 and 10 in her application. 3. The applicant, at her own cost, be at liberty to prune and remove any part of trees, branches, leaves and vegetations from the respondents' property that encroaches on or above the applicant's property. 4. That the existing Camellia hedges and Leighton Cypress hedge be maintained at a height of no less than 6 metres respectively. 5. That the applicant indemnifies [sic] the respondents against all claims, costs, losses, damages in connection with the applicant's pruning or removal of trees or vegetation."