The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 3346 v The Owners – Strata Plan 10848 [2021] NSWLEC 1504 Hearing dates: 10 May 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [49] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – trees have been removed but stumps remain – consent orders other than apportionment – actions and omissions of the parties Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12 Cases Cited: Breen v Caronna [2008] NSWLEC 293 Hale v McAlpin [2020] NSWLEC 1176 Noble v Harrison [1926] 2 KB 332 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 So v Turnbull [2021] NSWLEC 1424 Category: Principal judgment Parties: The Owners – Strata Plan 3346 (Applicant) The Owners – Strata Plan 10848 (Respondent) Representation: Counsel P Holt (Solicitor) (Applicant) N Hammond (Respondent)

Solicitors Holding Redlich (Applicant) Kerin Benson Lawyers (Respondent) File Number(s): 2020/326088 Publication restriction: No

Judgment

Background to the application 1. Both parties in these proceedings are the owners of strata plans, their properties being multi-unit buildings in Allawah: The Owners – Strata Plan 3346 ('the applicant') and The Owners – Strata Plan 10848 ('the respondent'). Residents' garages span the rear of the applicant's property, their rear walls forming a single wall extending along a common boundary shared with the respondent. Several trees grew on the respondent's land close to, and in at least one case, against, the rear brick wall of the applicant's garages. The respondent has removed the trees, other than their stumps, which remain. Brick walls of the applicant's garages are damaged. 2. The history of communications between the parties, extending back some years, is disputed. They attended mediation in 2019. The matter remained unresolved. The applicant then sent an offer for resolving the dispute, but the respondent refused the offer. 3. In 2020 the applicant applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for compensation for repair works, thereby commencing these proceedings. 4. The parties each obtained engineering evidence. Despite disagreeing earlier on various elements of the application, on the day of the hearing the parties agreed that the respondent's trees have damaged the applicant's property. They agreed that the applicant's garages require repair works. They agreed on the extent of those works and the method for carrying out the works. They only disputed the extent to which the respondent should compensate the applicant for the costs of those repair works.