Strata Plan 70657 v Strata Plan 65757 [2015] NSWLEC 1438

Land and Environment Court New South Wales

Medium Neutral Citation: Strata Plan 70657 v Strata Plan 65757 [2015] NSWLEC 1438 Hearing dates: 28 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage caused by tree roots; orders for tree removal and repairs to driveway. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson and anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Strata Plan 70657 (Applicant) Strata Plan 65757 (Respondent) Representation: Gordon Green, agent (Applicant) Ray Barrett, agent (Respondent) File Number(s): 20647 of 2015

Judgment

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

Background 1. The owners of Strata Plan 70657 ('the applicant') have applied to the Land and Environment Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the removal of three neighbouring trees and compensation from the neighbouring Strata Plan 65757 ('the respondent'). An ever-diminishing row of trees grows in a garden bed on common property on the respondent's land, close to and along the common boundary with the applicant's property. The trees were part of approved plans for the development application on the respondent's property and were planted in about 2000. On the applicant's side of the common boundary, within their common property, is a concrete driveway consisting of separate slabs of dark-coloured concrete. The driveway was constructed in about 2003. 2. The trees were the subject of a previous application made to the Court. In 2013 Fakes C determined that one tree should be removed on the basis that it was causing damage to the applicant's driveway. 3. Before I can make orders I must be satisfied that the circumstances have changed since that matter, as explained comprehensively in the decision of Moore SC and Thyer AC in Hinde v Anderson and anor [2009] NSWLEC 1148. According to s 10(2) of the Trees Act, I must also be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or are likely to cause injury to a person. 4. The applicant seeks the following compensation: $5,390 for gutter-guard installed to roof gutters of dwellings on the property; $6,380 for replacing three sections of the driveway lifted by tree roots; $40 for labour to expose roots adjacent to the driveway; and $228 being the cost of making the application. The last two items are costs for which Commissioners of the Court do not have the power to award, and would require a Notice of Motion to be filed and determined by the Registrar or a Judge of the Court. 5. In the application the proposed orders included the removal of three trees (Trees 3, 7 and 11), root pruning and monitoring of Tree 2, and pruning of tree 13 where it overhangs a dwelling. Tree 13 has been pruned in the interim and the applicant no longer seeks orders for that tree. Tree 3 has already been removed. 6. For clarity, the trees are listed below, using the numbering provided in the application: 2 Acer negundo (Box Elder) 3 Removed 4 A. negundo 5 Triadica sebifera (Chinese Tallow Tree) 6 A. negundo 7 T. sebifera 8 A. negundo 9 Removed 10 Removed 11 Syzygium smithii (Lilly Pilly) 12 S. smithii 13 Melia azedarach (White Cedar)