The Owners SP No 19443 v The Owners SP No 2554 [2022] NSWLEC 1475

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners SP No 19443 v The Owners SP No 2554 [2022] NSWLEC 1475 Hearing dates: 1 June 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The application is granted. Orders at [21]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –trees causing damage to wall and driveway - whether damage to infrastructure is caused by the trees – compensation for damage – consideration of privacy. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Category: Principal judgment Parties: The Owners SP No 19443 (Applicant) The Owners SP No 2554 (Respondent) Representation: Counsel: C Koikas (Applicant) R McCulloch (Respondent)

Solicitors: Strata Specialist Lawyers (Applicant) Pikes and Verekers Lawyers (Respondent) File Number(s): 2021/346314 Publication restriction: Nil

JUDGMENT

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

Background 1. COMMISSIONER: The applicant, The Owners SP No 19443, share a side boundary with the respondents, The Owners SP No 2554, in Mosman. The parties' dispute is based on alleged damage to a retaining wall and masonry edging, and possibly to adjacent driveway pavement, with maintenance of privacy between the various residences deemed an important consideration. 2. In 2017, the Owners SP No 2554 consulted Aura Tree Services in relation to trees on their land. Two large trees were identified as a Celtis sinensis (Chinese Celtis) near the centre of the block, and a Harpephyllum caffrum (African Plum) (the tree) growing close to the base of a retaining wall supporting the neighbouring property of Owners SP No 19443. The Celtis was removed prior to the onsite hearing. 3. Aura Tree Services identified that one fairly vertical large stem was "pushing against the adjoining common boundary masonry retaining wall" and recommended removal of this stem. No damage was identified at this inspection. Correspondence passed between owners and property managers. Ms Dawn Bell, on behalf of the Owners SP No 19443, sought removal of the tree based on concerns over the impact of its root system as well as the trunks. The Owners SP No 2554 preferred pruning of the identified major stem at their expense, and for any required wall repairs to be at the expense of Owners SP No 19443. 4. In 2018, Mosman Council (Council) granted permission for pruning of the tree but the maximum branch size specified was insufficient to provide for the required pruning of the rubbing stem. A subsequent 2021 application to Council, supported by reports, saw permission granted for pruning of the relevant stem. Regrettably, Aura Tree Services removed the wrong stem, such that the stem exerting pressure on the wall remained in place, with wall damage likely increasing as the stem progressively grew in girth. 5. Both parties procured engineering reports to clarify the situation, and in an attempt to remedy damage that the trees have caused, are causing, and are likely to cause in the near future, The Owners SP No 19443 submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).