Owners Corporation Strata Plan 328 v Owners Corporation Strata Plan 4743 [2011] NSWLEC 1226

Land and Environment Court New South Wales

Medium Neutral Citation: Owners Corporation Strata Plan 328 v Owners Corporation Strata Plan 4743 [2011] NSWLEC 1226 Hearing dates: 4 August 2011 Decision date: 04 August 2011 Jurisdiction: Class 2 Before: Galwey AC Decision: (1)The application is upheld in part. (2)The Respondent is to pay the Applicant $1,850 within 28 days of the date of these orders. Catchwords: TREES [NEIGHBOURS]; damage to property; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Owners Corporation Strata Plan 328 (Applicant)

Owners Corporation Strata Plan 4743 (Respondent) Representation: Ms V Ridley [Secretary, Strata Plan Executive Committee] (Applicant) Mr A Thurn [solicitor] McCulloch & Buggy (Respondent) File Number(s): 20324 of 2011

Judgment

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

Introduction 1ACTING COMMISSIONER: The Owners Corporation of a block of units in Crows Nest Road, Waverton seeks compensation and costs arising from damage to a driveway it claims is caused by a neighbouring tree. 2The application, made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), seeks from a neighbouring Owners Corporation compensation of $11,100 for repair works that have been carried out to the driveway. Costs of an arboricultural report and the application fee are also sought. 3As Commissioners do not have the authority to award costs, the Applicant can, if it so wishes, make a separate application to the Court to deal with those matters. Here I will only address the matter of compensation for repair of the driveway. 4To do this, it must first be established that the Court has jurisdiction to deal with the matter. Specifically, according to s 10(2)(a) of the Act, the Court must be satisfied that, in this case, the tree has caused damage to the Applicant's property. 5Secondly, if damage has occurred, in determining orders regarding compensation the Court must consider the matters listed in s 12 of the Act. This will establish what, if any, level of compensation would be appropriate, taking into account, for instance, other factors that may have contributed to damage.