Fang v Li & anor [2017] NSWLEC 1503

Fang v Li & anor [2017] NSWLEC 1503

The Court was satisfied that the Turpentine was likely to cause injury in the near future and that pruning was not viable, so it had to be removed. The Court was satisfied that limbs of the Tulip Tree had previously damaged the applicant's roof, but recent pruning sufficiently reduced the likelihood of further limb damage in the near future and no orders were warranted on that ground. The Court was not satisfied that leaves from the Tulip Tree directly caused compensable ceiling damage or that roots of the Tulip Tree caused damage to the dwelling, because the engineering evidence did not adequately demonstrate causation or exclude other causes. The Court was satisfied that roots of the...

Jurisdiction
Australia
Judgment Date
19 September 2017
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
The application is upheld.
Legal Topics
['root Damage' 'damage From Falling Limbs' 'risk of Injury From Trees' 'tree Removal' 'engineering Evidence' 'tree Dispute Principle' 'costs and Compensation']
['trees Disputes Between Neighbours' 'property Damage' 'environmental and Land Law'] ['root Damage' 'damage From Falling Limbs' 'risk of Injury From Trees' 'tree Removal' 'engineering Evidence' 'tree Dispute Principle' 'costs and Compensation']

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the Turpentine was likely to cause injury to any person in the near future and whether pruning or removal was appropriate.' "Whether above-ground parts of the Tulip Tree had caused or were likely in the near future to cause damage to the applicant's property." "Whether leaves and debris from the Tulip Tree caused compensable damage to the applicant's bathroom ceiling." "Whether roots of the Tulip Tree caused damage to the applicant's dwelling, concrete path and PVC pipe." 'Whether the damage could be remedied or prevented without removing the Tulip Tree.' "Whether the respondents should bear the costs of repairs or compensation for damage on the applicant's property."]

Ratio Decidendi

The Court was satisfied that the Turpentine was likely to cause injury in the near future and that pruning was not viable, so it had to be removed. The Court was satisfied that limbs of the Tulip Tree had previously damaged the applicant's roof, but recent pruning sufficiently reduced the likelihood of further limb damage in the near future and no orders were warranted on that ground. The Court was not satisfied that leaves from the Tulip Tree directly caused compensable ceiling damage or that roots of the Tulip Tree caused damage to the dwelling, because the engineering evidence did not adequately demonstrate causation or exclude other causes. The Court was satisfied that roots of the...

Court Disposition

The application is upheld.

Orders

  • ['Mr Yong Xie is joined as the Second Respondent in these proceedings.' 'Within 60 days of the date of these orders, the respondents are to engage a suitably qualified (minimum AQF level 3) and experienced arborist, with appropriate insurances, to remove both the Turpentine and the Tulip Tree.' 'If tree stumps...