All Saints Church Woollahra v The Owners - Strata Plan No. 16628

[2018] NSWLEC 1516

Land and Environment Court

New South Wales

Medium Neutral Citation:

All Saints Church Woollahra v The Owners - Strata Plan No. 16628 [2018] NSWLEC 1516

Hearing dates:

Conciliation conference on 28 September 2018

Date of orders:

28 September 2018

Decision date:

28 September 2018

Jurisdiction:

Class 2

Before:

Froh R

Decision:

See [4] below

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property– removal of tree – apportionment of costs

Legislation Cited:

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

All Saints Church Woollahra (Applicant)
The Owners - Strata Plan No. 16628 (First Respondent)
Pamela Pincombe (Second Respondent)
Paul Jeremy Hamor (Third Respondent)
Katherine Shane Spira (Fourth Respondent)

Representation:

Counsel:
L Walsh (First Respondent)

Solicitors:
M Cottom, Pikes & Verekers Lawyers (Applicant)
J.S. Mueller & Co (First Respondent)
M Mantei, Planning Law Solutions (Second Respondent)

Other:
P Hamor (Self-represented) (Third Respondent)
P Hamor (agent) (Fourth Respondent)

File Number(s):

2018/172248

Publication restriction:

No

Judgment

1. Registrar: In this matter, at or after a conciliation conference, an agreement under s 34(3) of the Land and Environment Court Act 1979 (the Court Act) was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. As the presiding officer, I was satisfied that the decision was one that the Court could have made in the proper exercise of its functions (this being the test applied by s 34(3) of the Court Act). As a consequence, s 34(3)(a) of the Act required me to “dispose of the proceedings in accordance with the decision”.

2. The Court Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The orders made to give effect to the agreement constitute that document.

3. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties.

4. The final orders to give effect to the parties’ agreement under s 34(3) of the Land and Environment Court Act 1979 are:

1. The First Respondent and the Second Respondent are to each pay the Applicant compensation for damage to property on the Applicant’s land described as Lot 10 DP 1227004 known as 85 Ocean Street, Woollahra in the amount of $5,000.00 within 14 days of the date of this order.

2. The trees the subject of the Amended Tree Dispute Application are to be removed pursuant to section 9(1) of the Trees (Disputes Between Neighbours) Act 2006.

3. The First Respondent, Third Respondent and Fourth Respondent are to give effect to Order 2 above by completing the removal of the subject trees within 28 days of the date of these orders.

4. The First Respondent is to pay 50% of the costs associated with carrying out Order 3 above.

5. The Third Respondent and Fourth Respondent are to pay 50% of the costs associated with carrying out Order 3 above.

6. The Court notes that the Applicant releases the Respondents from any further liability in relation to damage to its property caused by the trees the subject of the Amended Tree Dispute Application.

7. No order as to costs.

……………………….

Sarah Froh

Registrar of the Court

Decision last updated: 02 October 2018