The Owners Strata Plan 56111 v The Owners Strata Plan 39425 [2023] NSWLEC 1182

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Strata Plan 56111 v The Owners Strata Plan 39425 [2023] NSWLEC 1182 Hearing dates: 23 January 2023 Date of orders: 19 April 2023 Decision date: 19 April 2023 Jurisdiction: Class 1 Before: Douglas AC Decision: See Orders at [64] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to roofs, pipes and paving – claim of tree risk – considerable s 12 considerations Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12, Pt 2 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Australian Standards, AS 4373:2007, Pruning of amenity trees, March 2007 Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, July 2016 Category: Principal judgment Parties: The Owners Strata Plan 56111 (Applicant) The Owners Strata Plan 39425 (Respondent) Representation: Nick Amoroso (Agent) (Applicant) Non-appearance (Respondent) File Number(s): 2022/280808 Publication restriction: Nil

Judgment

COMMISSIONER:

Background 1. The applicant, The Owners SP No 56111, share a long side boundary with the respondent, The Owners SP No 39425, which runs roughly east-west from the front roadside entrance to the rear. The properties are located in Warriewood, where 23 mature trees are growing on the respondent's land in relatively close proximity to the boundary. 2. The Owners SP No 56111 made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking removal of all 23 trees, based on damage that the trees have caused, are causing, and are likely to cause in the near future, and on a claim that the trees present a genuine risk of injury. 3. The respondent provided the Court with notice of non- appearance for the final onsite hearing, as they also seek removal of the trees and do not contest the application. The respondent had previously applied to Northern Beaches Council (Council) seeking removal of some of the trees, but their application was refused. 4. The respondent has pruned the trees relatively regularly in the past, under the exemption from permission provided by Council for pruning a maximum of 10% of each tree's foliage. Unsurprisingly, as the respondent contracted and paid for these works, the pruning was primarily focused on foliage overhanging the respondent's land.