The Owners Corporation Strata Plan 47318 v The Owners Corporation Strata Plan 44716 [2014] NSWLEC 1075

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Corporation Strata Plan 47318 v The Owners Corporation Strata Plan 44716 [2014] NSWLEC 1075 Hearing dates: 29 April 2014 Decision date: 02 May 2014 Jurisdiction: Class 2 Before: Fakes C Decision: The application to remove the Norfolk Island Pine is dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property; insufficient evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 Holloway v McFeeters [1956] HCA 25, (1956) 94 CLR 470 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: The Owners Corporation Strata Plan 47318 (Applicant) The Owners Corporation Strata Plan 44716 (Respondent) Representation: Applicant: Mr P Clay SC (Barrister) Respondent: Mr G Rundle (Barrister) Applicant: Whittens Lawyers & Consultants File Number(s): 20089 of 2014

Judgment 1COMMISSIONER: The tree at the centre of this dispute is a mature Norfolk Island Pine growing in the south-western corner of the respondent's property in Darling Point. The tree is retained on two sides by an engineered wall. 2An application has been made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree. 3The applicant's property is to the west and down-slope of the respondent's property. The application is made on the basis of the applicant's contention that roots from the tree have damaged a wall and stairs on the applicant's property and that the damage will continue until the tree is removed. The application also raised concerns that in the event of a whole tree failure, anyone on the applicant's property could be injured. During the hearing, the issue of likelihood of injury was withdrawn.