Owners of Strata Plan 4334 v Linkara Pty Ltd [2018] NSWLEC 1197

Land and Environment Court New South Wales

Medium Neutral Citation: Owners of Strata Plan 4334 v Linkara Pty Ltd [2018] NSWLEC 1197 Hearing dates: 18 April 2018 Date of orders: 18 April 2018 Decision date: 18 April 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: 1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); retaining wall; age and deterioration of the wall; roots not shown to be the cause of damage; dividing fence; damage to fence is minor and does not justify orders. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Owners of Strata Plan 4334 (Applicant) Linkara Pty Ltd (Respondent) Representation: M Russell, agent (Applicant) L Karathanassis, agent (Respondent) File Number(s): 17/366419 Publication restriction: Nil

Judgment

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

Background 1. The land on which the building of Strata Plan 4334 (the applicant) sits is slightly lower than the property to their southwest, owned by Linkara Pty Ltd (the respondent), a company owned by Mr Karathanassis and Ms Lintott. A retaining wall up to a metre tall on the applicant's land supports the soil. Above this a steel panel dividing fence that runs along the boundary. 2. In 2013 owners of the Strata Plan units noticed that the retaining wall was cracking and being displaced. An engineer, Lewis Martin, advised that this was due to roots from neighbouring trees and recommended the wall's replacement with a new block wall. Unit owners discussed the issue with Mr Karathanassis but were unable to come to any agreement. When part of the top of the wall collapsed in 2015, the applicant had the wall demolished and replaced with a new block wall as recommended. 3. The applicant now seeks orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') for the respondent to: * remove two philodendron plants, one alive and the stump of another that was recently cut back; * repair the dividing fence; and * pay compensation of 50% of the cost of replacing the wall, equivalent to $8,756. 1. Apart from the philodendron plants, the application also claimed an umbrella tree on the respondent's land caused damage to the wall, however there is no umbrella tree to be seen near the common boundary.