Owners' Corporation SP17514 v Owners' Corporation SP34633 [2013] NSWLEC 1105

Land and Environment Court New South Wales

Medium Neutral Citation: Owners' Corporation SP17514 v Owners' Corporation SP34633 [2013] NSWLEC 1105 Hearing dates: 19 June 2013 Decision date: 19 June 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of two trees; rectification of driveway and wire fence Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; rectification of property Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Owners' Corporation SP17514 (Applicant) Owners' Corporation SP34633 (Respondent) Representation: Applicant: Ms D Howie (Agent) Respondent: Mr S Kierdal (Agent) Ms E Edeltrut (Agent) File Number(s): 20279 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant in these proceedings is seeking orders for the removal of four trees and the rectification of parts of the common property it says have been damaged by the trees. 2The owners of the respondent property are divided in their opinions as to what should or shouldn't happen to the trees. 3The trees are three large and mature Araucaria heterophylla (Norfolk Island Pines) (trees 1, 2 and 3 - the Pines) and an established but still relatively small Phoenix canariensis (Canary Island Date Palm)(T4 - the Palm) growing along the western boundary of the respondent's property and which abut the dividing fence between the parties' properties. 4One of the unit owners on the respondent's property stated that the Norfolk Island Pines were large trees when she purchased the property more than 43 years ago. 5The applicant is seeking rectification, at the respondent's expense, of the following elements of common property: * a section of low brick wall alleged to have been damaged by a branch that fell from Tree 1; * removal and replacement of several sections of concrete driveway and the associated dish drain adjoining trees 1 and 3 - said to have been cracked and lifted by the roots of those trees; and * removal and replacement of the wire mesh portion of the dividing fence, part of which has been displaced by the Canary Island Date Palm. 6Apart from actual damage to property, the applicant is concerned that the roots of all the Pines may cause future damage to the driveway and the footings of the units. 7The applicant is also concerned that branches falling from the trees could injure someone or that someone could slip on leaves or trip on the cracked driveway. 8It was also contended that the raised driveway adjoining T3 sheds rainwater into the garage of one of the units thus creating a nuisance as well as concerns for safety. 9While it was not raised on site, the applicant also contends that the build up of leaf litter may create a fire hazard. 10In applications under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), 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 the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. This section must be applied to each of the trees that are the subject of the application. 11As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 is relevant in that the Court has determined that the 'near future' is a period of 12 months from the date of the hearing. With respect to potential injury, the Court considers the 'foreseeable' future based on the characteristics of the species, its condition at the time of the hearing, any evidence of past failures, and the circumstances in which it is growing. 12Dealing with each of the elements of the claim and the respective trees.