Toulson v Kuan [2025] NSWLEC 1072

Land and Environment Court New South Wales

Medium Neutral Citation: Toulson v Kuan [2025] NSWLEC 1072 Hearing dates: 22 October 2024 Date of orders: 11 February 2025 Decision date: 11 February 2025 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging tree – apprehension of damage and injury – debris falling onto applicant's land – significant environmental contributions under s 12 Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 8, 9, 10, 12 State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 2 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Garbutt v Nichols [2025] NSWLEC 1035 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Parramatta Development Control Plan 2023 Category: Principal judgment Parties: Nigel Peter Toulson (Applicant) Yeh Sheng Kuan (Respondent) Representation: N Toulson (Self-represented) (Applicant) R Karlaftis (Agent) (Respondent) File Number(s): 2024/316537 Publication restriction: Nil

JUDGMENT 1. COMMISSIONER: Edward Toulson and Yeh Sheng Kuan (the respondent) own neighbouring properties in North Rocks that share a side boundary. As Mr Edward Toulson was 95 years old, his son, Nigel Peter Toulson (Mr Toulson) (the applicant), represented Mr Edward Toulson. The respondent's property was leased to tenants and was managed by Ms Karlaftis of First National Real Estate Homeway, Castle Hill. 2. The canopy of a large weeping fig tree (the tree) growing near the common boundary had branches extending over the front yards of both properties. In an initial email to Ms Karlaftis on 28 May 2024, Mr Toulson advised that the tree was encroaching almost 10 m over the common property boundary. The applicant requested that Ms Karlaftis or Mr Kuan "organise to have the fig tree pruned to the property boundary or removed". Ms Karlaftis replied that, "[t]rimming back anything hanging over is to your discretion and expense. This includes removal and [I] believe there is a limit of 10% per year, according to council - depending on the species of the tree". 3. Ms Karlaftis forwarded the applicant's email to Mr Kuan and advised the applicant that Mr Kuan had recently pruned high branches overhanging Mr Kuan's property from Mr Toulson's father's trees near the common boundary, so as to restore Mr Kuan's roof. Ms Karlaftis noted such tree works were undertaken at Mr Kuan's expense, "being that we are all responsible for our own yard". 4. Upon receiving a reply from Mr Kuan, Ms Karlaftis advised Mr Toulson on 4 June 2024, that Parramatta City Council (Council) had refused an application from Mr Kuan in 2008 for removal of the tree. Ms Karlaftis added that Mr Toulson was welcome to again apply to Council, and "you are within your right" to cut back 10% of the tree's canopy from your side, at your expense". 5. On 7 June 2024, the applicant contacted a Community Justice Centre (CJC). A CJC case co-ordinator subsequently advised the applicant that three consecutive mediation request letters would be sent to Ms Karlaftis on his behalf. On 9 July 2024, the CJC case co-ordinator reported to Mr Toulson that two of the three letters had been sent with no reply to date. In an email to Mr Toulson on 10 July 2024, Ms Karlaftis confirmed receipt of a CJC mediation request and advised that Mr Kuan would "be acting direct". 6. Having received no contact from Mr Kuan by 7 August 2024, Mr Nigel Toulson made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application proposed the Court make orders for tree removal or pruning to the common boundary, "to remove potential risk for further injury or damage to property". Additionally, the applicant claimed $394.00 compensation for the cost of filing the application and the title search.