Proprietors Strata Plan 55820 v Proprietors Strata Plan 20738 [2017] NSWLEC 1699

Land and Environment Court New South Wales

Medium Neutral Citation: Proprietors Strata Plan 55820 v Proprietors Strata Plan 20738 [2017] NSWLEC 1699 Hearing dates: 19 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [36] Catchwords: TREES [NEIGHBOURS] : Damage to property; potential injury; rectification; apportionment Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Black v Johnson (No 2) NSWLEC 513 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: The Proprietors Strata Plan 55820 (Applicant) The Proprietors Strata Plan 20738 (Respondent) Representation: Applicant: Mr I Foulsham (Solicitor) Respondent: Ms L Walsh (Barrister)

Solicitors Applicant: Bull, Son & Schmidt Respondent: JS Mueller & Co Lawyers File Number(s): 222105 of 2017 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The parties in these proceedings are the Proprietors of two adjoining Strata Plan residential flat buildings in Naremburn. 2. Growing along the respondent's northern side boundary, and close to the common dividing fence, are several mature trees. The applicant contends that the roots of two of the trees, Camphor Laurels, have caused damage to the applicant's driveway, pavement, courtyard brick wall, dividing fence, sewer and storm water drainage system. The applicant submits that the lifted driveway constitutes a trip hazard. The applicant is also concerned that the overhanging branches of three Corymbia maculata (Spotted Gums) [described in the application and claim form as "Ghost Gums"] may fall and cause either damage or injury. 3. The applicant has applies under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking removal of the two Camphor Laurels, pruning of the overhanging branches of the Spotted Gums, and rectification of the driveway, plumbing and boundary fence. All orders are sought at the respondent's expense. 4. During the on-site hearing, the claim for rectification was amended to just the removal and replacement of part of the driveway.