The Owners – Strata Scheme 51500 v The Owners – Strata Scheme 4234 [2017] NSWLEC 1576

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Scheme 51500 v The Owners – Strata Scheme 4234 [2017] NSWLEC 1576 Hearing dates: 9 October 2017 Date of orders: 12 October 2017 Decision date: 12 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] : Damage to property, potential injury; compensation; sufficiency of evidence of causation and notification Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Limitation Act 1969 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 Maroney v John [2008] NSWLEC 32 McCallum v Riodan & anor [2011] NSWLEC 1009 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: The Owners – Strata Scheme 51500 (Applicant) The Owners – Strata Scheme 4234 (Respondent) Representation: Applicant: Mr Appleby (Agent) Respondent: Ms Mozjeko (Solicitor)

Solicitors: McCabes File Number(s): 195613 of 2017

JUDGMENT 1. COMMISSIONER: The parties in these proceedings are the owners of two strata schemes. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders concerning a large Ficus macrophylla (Moreton Bay Fig) growing at the rear of the respondents' property and extending over the common boundary. 2. The applicant is seeking the following orders (summarised from the Class 2 Application): * Yearly ongoing maintenance/pruning of the Fig away from the applicant's property at the respondent's expense; * The respondent to be liable for all future damage to the applicant's property or injuries caused by the tree and for all associated payments and compensation; and * Payment of compensation for damage to the applicant's property – including the dividing fence, paving, and damage to a sewer pipe [by way of reimbursement of $11,052 for money spent by the applicant]. 1. The orders are sought on the basis of the applicant's contention that the tree has caused damage to various elements of common property and could continue to do so. The applicant submits that branches falling from the tree could cause injury to anyone on their property. 2. The respondent contends that the tree has been, and will continue to be, maintained. The respondent disputes the evidentiary basis of the claim. 3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 3. If any of the tests in s 10(2) are satisfied, the Court's powers to make orders under s 9 of the Trees Act are engaged. This in turn requires consideration of relevant matters under s 12.