Fang v Li & anor [2017] NSWLEC 1503

Land and Environment Court New South Wales

Medium Neutral Citation: Fang v Li & anor [2017] NSWLEC 1503 Hearing dates: 6 June 2017 Date of orders: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 87. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); root damage; damage from falling limbs; when did the damage occur; could the respondents have taken action; engineering evidence; tree dispute principle; investigations that might assist the Court where the applicant claims tree roots have caused damage to a building. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Rui Fang (Applicant) Chunyan Li (First Respondent) Yong Xie (Second Respondent) Representation: Counsel Rui Fang, Litigant in Person (Applicant) Justin Doyle, Barrister (Respondents)

Solicitors Connor & Co Lawyers (Respondents) File Number(s): 73419 of 2017

Judgment

Background 1. Rui Fang ('the applicant') has lived at his Wahroonga property since mid–2013. Behind the original double-storey brick dwelling on his property is a single-storey brick family room extension dating from 1981. 2. Several trees grow on a neighbouring property. Two of these are the subject of Mr Fang's application to the Court, made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). 3. Close to the common boundary, and only a few metres from Mr Fang's family room wall, is a large mature Tulip Tree (Liriodendron tulipifera). Mr Fang claims that the tree has damaged his property and will cause further damage if not removed. Also close to the common boundary, and overhanging Mr Fang's front garden, is a Turpentine (Syncarpia glomulifera) that Mr Fang says is likely to cause injury to people on his property. 4. The neighbouring property on which the trees grow is owned by Chunyan Li and Yong Xie ('the respondents'). They have owned and lived at the property since mid–2014. 5. Soon after the respondents purchased their property, Mr Fang asked them to remove the Tulip Tree because it was damaging his property. Ms Li visited Mr Fang's property, where he pointed out damage he said was due to tree roots. From her statements, it appears that Ms Li took Mr Fang's claims seriously. Considering the respondents' recent arrival at their property, their appreciation of the tree and their lack of knowledge about trees, before removing the tree Ms Li reasonably expected that Mr Fang should provide some professionally gathered evidence demonstrating that their tree was responsible for the damage. 6. Despite further discussions between the parties, sometimes by text messages, the respondents were not convinced their tree had caused any damage. Mr Fang then filed his application with the Court. 7. Mr Fang seeks the following orders: * Removal of the Tulip Tree; * Repair of his dwelling's footing and wall nearest the Tulip Tree; * Repair of a concrete path near the Tulip Tree; * Repair of pipes near the Tulip Tree; * Compensation for the cost of these repair works; * Pruning of the Turpentine; * Costs of expert reports and preparing and filing his application. 1. Mr Fang had also sought an order for the respondents to compensate him for the $500 insurance excess he incurred when branches of the Tulip Tree damaged his roof. It is noted here that the respondents have decided to pay him this amount and the parties agree that no such order is required. 2. To support his application Mr Fang obtained reports from: * Andrew Scales (arborist) of Naturally Trees (Exhibit C); * Simon Fagg (engineer) of Shirley Consulting Engineers (Exhibit D); and * Paheer Paheerathan (engineer) of SPAD Consulting Structural and Civil Engineers (Exhibit E). 1. Mr Fang filed invoices showing the costs of these reports and his solicitor's fees: * Solicitor's fees $627; * Naturally Trees $1,435.01; * Shirley Consulting $3,500; * SPAD $3,135. 1. Commissioners of the Court are unable to make orders for costs. If Mr Fang wishes to pursue this element of his application he will need to file a Notice of Motion that would be heard and determined by the Registrar or a Judge of the Court. 2. The engineering and arboricultural experts listed above were not at the hearing and so were not cross-examined. 3. Ms Li and Mr Xie filed two reports: * George Palmer (arborist) of Botanics Tree Wise People; and * Lyle Marshall (engineer) of Lyle Marshall & Partners. 1. Both reports were filed only four days before the hearing, well after the filing date given in the Court's earlier directions. Explanations offered for the late filing seemed frail at best, so in making this decision I do not rely on any material within their reports, but both experts were at the hearing, presenting oral evidence on which they were questioned.