Anvari v Strata Plan 12974 [2016] NSWLEC 1004

Land and Environment Court New South Wales

Medium Neutral Citation: Anvari v Strata Plan 12974 [2016] NSWLEC 1004 Hearing dates: 26 November 2015 Date of orders: 05 January 2016 Decision date: 05 January 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 23. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; hedge; obstruction of sunlight and views; respondent's intention to remove trees relies on council permission; orders for tree pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Farshid Anvari (Applicant) Owners Corporation, Strata Plan 12974 (Respondent) Representation: Farshid Anvari and Hien Tran, litigants in person (Applicant) Mr O'Connor, counsel (Respondent) Sachs Gerace Broome, solicitors (Respondent) File Number(s): 20838 of 2015

Judgment

Background 1. Mr Anvari and Ms Tran have lived at Russell Lea since 2002. During that time they have seen trees grow on the land to their west, on which a multi-dwelling townhouse development is situated. Mr Anvari ('the applicant') has filed an application with the Land and Environment Court. His application includes an intricate array of claims and orders covering tree pruning and removal, compensation and rectification works pursuant to both Part 2 (trees causing damage or injury) and Part 2A (hedges obstructing sunlight or views) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). I have simplified the claims and orders in the following table. 1. The Owners' Corporation of Strata Plan 12974 ('the respondent') was represented at the hearing by Mr O'Connor. The respondent obtained reports from arborist Ms Sue Wylie and engineer Mr McMillan, both of whom were present and gave evidence at the hearing. 2. Both parties made submissions regarding attempts at mediation, failed meetings, conversations and refused offers. I am left in no doubt that the jurisdictional test at s 10(1) of the Trees Act is satisfied. 3. The next jurisdictional test at s 10(2) of the Trees Act is not satisfied for many of the trees. I will address below the various claims made in Mr Anvari's application. 4. At the beginning of the hearing Mr O'Connor explained that the respondent has made an offer to the applicant. Although the offer was made without prejudice save as to costs, Mr O'Connor emphasised that the offer still stands and tendered it as evidence. The respondent offers to remove all trees in the narrow garden bed along its eastern boundary, being trees T1-T15 and trees in hedges H1, H2 and H3. He says this removes much of the area of contention, greatly reducing the issues to be determined by the Court. However according to Ms Wylie, the consulting arborist engaged by the respondent to assess the trees, this offer relies on Council consenting to an application to remove those trees. Such an application has not been made to or approved by Council, so in determining this matter I cannot assume that any of these trees will be removed. 5. The respondent's reasons for intending to remove trees in the narrow garden bed are to prevent damage to its own property. Ms Wylie's report states that all of these trees are too large for the narrow bed in which they are planted. Ms Wylie is of the opinion that the trees may be uprooted due to lack of space for proper root development.