Land and Environment Court New South Wales

• Medium Neutral Citation: The Owners - Strata Plan No. 53809 v The Owners - Strata Plan No. 10622 [2012] NSWLEC 1022
• Hearing dates: 8 February 2012
• Decision date: 08 February 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The tree dispute application is upheld. Orders made for removal.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; removal ordered; compensation ordered; consent orders
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: APPLICANT; The Owners - Strata Plan No. 53809; RESPONDENT; The Owners - Strata Plan No. 10622
• Representation: APPLICANT; Mr P Tong and Mr M Tang (solicitors); Grace Lawyers; RESPONDENTS; Mr M Pobi (solicitor); Bannermans Lawyers
• File Number(s): 20874 of 2011

Judgment

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

1 ACTING COMMISSIONER: A brick wall on the common boundary between two strata plan properties in Coogee has been displaced. Trees on one of the properties grow against the wall. The applicant contends that the trees have caused displacement of the wall and seeks removal of the trees and compensation for some of the required demolition and repair works.

2 At the outset of this matter being heard, both parties agreed that the issues could be resolved by consent orders. To make such orders, the Court must first find that the Trees (Disputes Between Neighbours) Act 2006 applies to the trees, that the jurisdictional tests of the Act are satisfied and that the orders are appropriate. The onsite hearing continued and I viewed the trees and the damaged wall and reviewed the submitted evidence.

Site inspection and evidence

3 Nine trees are planted on the respondent's property along the northern boundary, which is shared with the applicant. The trees were planted immediately adjacent to the brick wall on the boundary, so that at ground level their stems are against the wall (T5 to T9) or against the remaining footing of the demolished section of the wall (T1 to T4).

4 Tree 1, at the western end of the wall is a lemon tree; Trees 2 to 9 are palm trees 4 to 9 metres tall. The trees are planted at even spacings along the boundary.

5 The western section of the wall was demolished several years ago by the applicant due to concerns it may topple and cause injury. The applicant has a copy of the paid invoice for those works.

6 The remaining eastern section of the wall, approximately 35 metres in length, is a 2-metre high mortar brick wall with engaged piers. The top of the wall is visibly displaced at multiple points, each point adjacent to one of the trees.

7 A report by Mr Daniel Binnington, a Civil Engineer with Core Project Consulting, shows photos of roots found beneath the wall. The report includes measurements of the displacement of the wall in the vertical plane of up to 80 mm. Mr Binnington states that the maximum deviation for non-structural framework tolerance in AS3700 Masonry Structures is 10mm. Mr Binnington concludes that the trees caused damage to the demolished section of the wall; that they have caused damage to the remaining section of the wall; and that the wall no longer complies with relevant standards and requires repair. The respondent does not dispute these findings or conclusions. No observation during the onsite hearing led me to doubt any of Mr Binnington's findings or conclusions.

Does the Court have jurisdiction?

8 The wall is on the boundary and at least partly on the applicant's land. Therefore the jurisdictional test in s 10(2) of the Act is satisfied trees, i.e. the trees concerned have caused damage to the applicant's property.

9 Even if not all trees have caused displacement to the wall, it is apparent that the majority have and, based on their growth rates, I am satisfied that the remainder of the trees are likely to cause damage in the near future.

10 I am satisfied that the consent orders submitted by the parties are appropriate orders as described in s 9 of the Act. There are no matters that need to be considered under s 12 that would prevent the Court making these orders.

Orders

11 Therefore, the orders of the Court, by consent, are:

(1) The tree dispute application is upheld.

(2) The respondent, at its own cost, is to take all necessary steps to remove Trees 1 to 9 as identified in the report from Core Project Consulting dated 1 August 2011, such trees to be removed by 28 March 2012.

(3) The parties are to engage Core Project Consulting or another suitably qualified engineer as agreed between the parties to supervise the removal of Trees 1 to 9.

(4) The cost of Core Project Consulting or another suitably qualified engineer as agreed between the parties to supervise the removal of Trees 1 to 9 is to be shared equally by the parties.

(5) The parties are to do all necessary works to repair the eastern portion of the dividing fence as identified in the report from Core Project Consulting dated 1 August 2011, including engaging Core Project Consulting or another suitably qualified engineer as agreed between the parties to supervise and verify the repairs have been done in a proper and workmanlike manner, such works to be completed by 28 May 2012.

(6) The cost of the work to repair the eastern portion of the dividing fence is to be paid by the applicant.

(7) The parties are to engage Georges Fencing (or another fencing company agreed to by the parties) and are to do all necessary works to erect a lap and cap wooden fence on the western portion of the dividing boundary, such fence to be constructed of treated pine and to be 1.8 metres in height and be completed by 28 June 2012.

(8) The cost of the work in (7) is to be shared equally by the parties.

(9) The respondent is to pay the applicant the sum of $9,680, being half the cost of demolishing the pre-existing single skin brick masonry wall on the western portion of the dividing boundary as set out in the invoice from Everest Contracting Pty Ltd dated 28 January 2010, on or before 8 April 2012.

(10) Any motion for the costs of the proceedings is to be filed and served within 28 days of the date of these orders.

12 The Court notes the further agreement between the parties as follows: the respondent is not to plant any trees along the dividing fence.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 09 February 2012