The Owners Corporation Strata Plan 53347 v Ideal Beachside Pty Ltd [2017] NSWLEC 1627

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners Corporation Strata Plan 53347 v Ideal Beachside Pty Ltd [2017] NSWLEC 1627 Hearing dates: 23 October 2017 Date of orders: 08 November 2017 Decision date: 08 November 2017 Jurisdiction: Class 1 Before: Fakes AC Decision: See [9] Catchwords: TREES [NEIGHBOURS] : Damage to property; retaining wall; apportionment; Consent orders Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: The Owners Corporation Strata Plan 53347 (Applicant) Ideal Beachside Pty Ltd (Respondent) Representation: Applicant: Mr T Bacon (Solicitor) Respondent: Mr D Grey (Agent)

Solicitors: Applicant: Strata Title Lawyers File Number(s): 203867 of 2017 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of trees growing on the respondents' Coogee property and replacement of a retaining wall and fence allegedly damaged by the trees. The applicant is concerned that given the dilapidation of the retaining wall, it poses a hazard to occupants and visitors. 2. 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 trees in question are a large Camphor Laurel, Oleander and Illawarra Flame Tree growing at the rear of the respondent's property and close to the wall. 2. The hearing commenced on site with an inspection of both properties. The trees have been removed however there is photographic evidence of their existence and a number of large woody roots from the Camphor Laurel remain. 3. The wall is a double brick retaining wall along the common boundary. The wall is cracked and displaced and the render has started to come away. Photographs in the application claim form show a paling fence that had been erected on top of the wall in a state of collapse. 4. I am satisfied to the extent required by s 10(2) that the respondent's trees, in particular the Camphor Laurel, were a principal cause of the damage to the wall and as such, the Court's jurisdiction to make orders is engaged. 5. The hearing was adjourned to enable further discussions between the parties. The parties have proposed and filed consent orders, which give effect to those discussions. I note that proposed order 14 relates to the reserving of costs; Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 6. I am satisfied that the proposed consent orders are orders that can be made pursuant to s 9 of the Trees Act. The terminology has been amended to reflect the usual practice in these matters. The proposed orders have been renumbered as the first proposed order is a statement of jurisdiction rather than an order for something to be done.