Owners of Strata Plan 1803 v Owners of Strata Plan 67473 [2013] NSWLEC 1200

Land and Environment Court New South Wales

Medium Neutral Citation: Owners of Strata Plan 1803 v Owners of Strata Plan 67473 [2013] NSWLEC 1200 Hearing dates: 22 October 2013 Decision date: 22 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld in part; annual removal of dead fronds Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; property on respondent's land Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Category: Principal judgment Parties: The Owners of Strata Plan 1803 (Applicant) The Owners of Strata Plan 67423 (Respondent) Representation: Applicant: Ms D Lawler (Agent) Respondent: Mr R Krochmalik (Agent) File Number(s): 20593 of 2013

Judgment 1COMMISSIONER: The applicant in this dispute seeks orders for the removal of a mature Phoenix canariensis (Canary Island Date Palm), the rectification of a retaining wall, and the sharing of costs for the installation of a timber, paling dividing fence between the parties' properties. 2The applicant contends that the root ball has encroached onto the applicant's land and has displaced and damaged a section of retaining wall between the parties' properties. The applicant is also concerned that dead fronds falling from the palm could cause damage to property on the applicant's land or injury to anyone in the vicinity. During the hearing, the applicant's agent also raised concerns about the tree's stability and the possibility of it failing onto their property. 3The respondent does not wish to remove the palm. 4The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). 5There are three main elements of the application - the brick wall, the palm and dividing fence.