Xue v Cheng

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — two neighbouring trees — damage to property — orders for removing two trees and repairing property damaged by trees

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 6, 7, 8, 9, 10, 12

Cases Cited: Liang v Marsh [2011] NSWLEC 1026

Texts Cited: Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work

Category: Principal judgment

Parties: Hang Xue (Applicant)
Jianling Cheng (Respondent)

Representation: Counsel:
H Xue (Self-represented) (Applicant)
S Tse (Agent) (Respondent)

File Number(s): 2025/395228

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: In Ashfield, in Sydney’s inner west, Hang Xue (the applicant) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for his neighbour Jianling Cheng (the respondent) to remove two trees and to repair damaged property. The trees are a large paperbark (T1) and a clump of giant bird of paradise (T2). Mr Xue claims the trees have damaged a fence and wall on the common boundary shared by the parties and concrete pavement on his property.

2. The onsite hearing allowed the Court to view the trees and both properties. Mr Xue was self-represented; Mr Tse represented Ms Cheng as her agent. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Pursuant to s 7 of the Trees Act, the applicant has applied for orders to remedy, restrain or prevent damage to property on his land, as a consequence of two trees situated on adjoining land. The orders that the applicant seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

4. The Court must not make any order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondent and has given the required notice of the application: s 10(1) of the Trees Act. The Court must also be satisfied, before making an order for any tree, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to a person: s 10(2) of the Trees Act. Before determining the application, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

5. Mr Xue wrote to Ms Cheng, via her property agent, on 18 February 2025 asking her to remove both trees due to the damage they were causing. Ms Cheng took no action. I am satisfied that Mr Xue made a reasonable effort to reach agreement, and that he has given notice of the application as required at s 8 of the Trees Act.

The trees have caused damage

The paperbark (T1)

6. The paperbark is mature, approximately 8 metres tall with a stem diameter greater than one metre. Its stem is growing against the steel panel fence along the common boundary, pushing it into the narrow passageway between Mr Xue’s dwelling and the boundary. The stem also pushes against the concrete block wall (the respondent’s wall) supporting a roof for a shaded area on Ms Cheng’s property. The wall is leaning significantly. The wall continues at right angles along the common boundary (the boundary wall). Although the tree does not push directly against the boundary wall, the pressure from the respondent’s wall against the boundary wall has caused the boundary wall’s vertical joint to separate and a section of the boundary wall leans slightly into the applicant’s property. The situation will worsen if the tree is not removed. I see no reasonable alternative to removing T1.

The giant bird of paradise (T2)

7. The clump of giant bird of paradise pushes against the steel panel fence along the common boundary, displacing and damaging the fence. The situation will worsen if the tree is not removed. I see no reasonable alternative to removing T2.

Matters considered

8. I have considered the matters at s 12 of the Trees Act. Both trees are close to the boundary and encroaching into Mr Xue’s property. The trees’ stems push against the fence, in an area that limits opportunities for alternative fencing that might allow for tree retention.

9. Ms Cheng’s land is in a heritage conservation area, so a development application to Inner West Council would ordinarily be required to remove these trees. Pursuant to s 6(3) of the Trees Act, Ms Cheng will not be required to gain Council consent to remove the trees. Council consent may be required for other works, in which case it is Ms Cheng’s responsibility to arrange for those works.

10. The trees have some environmental value, but this can be replaced with suitable replanting.

11. The trees’ damage to the wall and fence is obvious on inspection. Mr Xue claims the trees have also damaged his concrete path alongside the fence. Some small cracks in the concrete could be seen and the surface is slightly uneven. The extent to which tree roots have caused these issues is unclear. Mr Xue has only owned his property since 2024, so the path’s condition is probably similar to its condition when he purchased the property, in which case Mr Xue has not suffered a loss: see Liang v Marsh [2011] NSWLEC 1026 (“Liang*”*) at [32]–[35]. For these reasons, no order will be made for Ms Cheng to repair the concrete path or to contribute to the cost of its repair. The path is serviceable and may not require repairs. Should Mr Xue choose to repair or replace the path, that is a matter for him.

12. Mr Xue has not contributed to the damage through his own acts or omissions. As the trees’ owner, Ms Cheng will bear the costs of tree removal and property repair works.

Orders

13. The Court orders that:

14. The application is granted to the extent of the following orders.

15. The respondent is to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove T1 (paperbark) and T2 (clump of giant bird-of-paradise) to ground level and to grind out their stumps by 14 February 2026. These works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

16. The respondent is to engage suitably experienced and insured contractors to complete the following works by 28 February 2026:

(a) Repair or replace the steel panel fence and supporting sleepers at ground level along the common boundary shared by the parties within 2 metres of the trees so that the fence is straight and upright, matches the remainder of the steel panel fence, and is of a sufficient standard for a dividing fence. (b) Repair or replace the concrete block wall along the common boundary shared by the parties using the same or similar materials to the existing wall, such that it is vertical, safe, and is of a sufficient standard for a dividing fence.

4. The respondent is to obtain any specifications, permits and certification required to commence and complete the works in Order (3).
5. On at least 2 days notice from the respondent, the applicant is to allow any access required to his property for completion of the works in Orders (2) and (3) during reasonable hours of the day.
6. If the two trees are not removed by 14 February, the applicant may engage a suitably qualified (minimum AQF level 3) and insured arborist to remove T1 (paperbark) and T2 (clump of giant bird-of-paradise) to ground level and to grind out their stumps by 31 March 2026. These works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. The applicant must provide the respondent with a copy of any receipted paid invoices for these works within 7 days of their completion.
7. If Order (6) is enlivened, the respondent is to allow access to her property on reasonable notice for the works in Order (6) and is to pay the applicant the amount of receipted paid invoices for the works within 7 days of the applicant providing them to her.
8. Within 6 months of the date of these orders, the respondent is to plant 4 trees on her property, at least one metre from any boundary. The trees must be ones that can reach at least 6 metres in height at maturity. The respondent is to maintain these trees with irrigation and mulching as necessary to ensure their ongoing wellbeing.
9. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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