Owners Corporation 18553 v Owners Corporation SP8717 [2013] NSWLEC 1043

Land and Environment Court New South Wales

Medium Neutral Citation: Owners Corporation 18553 v Owners Corporation SP8717 [2013] NSWLEC 1043 Hearing dates: 1 March 2013 Decision date: 12 March 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; tree removal ordered; rectification of driveway ordered; no orders for rectification of fence or automatic gates Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Owners Corporation 18553 (Applicant) Owners Corporation SP8717 (Respondent) Representation: Applicant: Mr Tay (Agent) Respondent: Mr Szpalinski (Agent) File Number(s): 21175 of 2012

Judgment 1COMMISSIONER: The parties in this matter are the Owners' Corporations of two adjoining residential flat buildings in Cabramatta. 2The applicant is seeking the removal of two trees (and their roots) growing on the respondent's property immediately adjoining the driveway servicing the applicant's property. The applicant is also seeking rectification, at the respondent's expense, of sections of the driveway, the dividing fence, and automatic gates. The applicant contends that these structures have been damaged by the trees. The application claim form includes a 2010 quote for $15,900 plus GST for repair works including the replacement of the fence and 54m2 of concrete. 3The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 4The respondent's position, articulated by its agent Mr Szpalinski, the Secretary of the Owners' Corporation and a resident of the property, is that the damage is not caused by the trees but rather by water moving from the applicant's property onto the respondent's property. The respondent values the trees, especially the Liquidambar for the shade it provides from the western sun and for its use by native birds, and does not wish to remove them. Mr Szpalinski stated that the trees should be able to be retained if tree protection measures were installed; however, no details of what these measures may be were forthcoming. The respondent does not consider that any compensation is payable to the applicant. 5Mr Szpalinski stated that the Owners Corporation SP8717 had an arborist reduce the height of the Liquidambar and would be prepared to have that carried out again. 6In applications made under this Part, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that any of the trees the subject of the application, has caused, is causing, or could in the near future cause damage to the applicant's property, or could cause injury to any person.