Amycol Group Pty Ltd v Gillies

Land and Environment Court

New South Wales

Medium Neutral Citation:	Amycol Group Pty Ltd v Gillies & anor [2014] NSWLEC 1021
Hearing dates:	12 February 2014
Decision date:	12 February 2014
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [25]
Catchwords:	TREES [NEIGHBOURS] Damage to property; consent orders; rectification ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Cincotta V Huang & ors [2011] NSWLEC 1086 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category:	Principal judgment
Parties:	Amycol Group Pty Ltd (Applicant) Mr S Gillies (First Respondent) Ms J Metzke (Second Resondent)
Representation:	Applicant: Ms C Renner (Solicitor) Respondent: Ms A Touriki (Solicitor) Applicant: Gadens Lawyers Respondent: Athena Touriki Solicitors
File Number(s):	20829 of 2013

Judgment

1. COMMISSIONER: The parties in this matter are seeking Consent Orders for the rectification of various elements of the applicant's property said to have been caused by trees that were once growing on the respondents' property.

1. Before agreeing to make the orders sought by the parties, the Court must determine whether it has the power to do so. The Court's jurisdiction to make orders under s 9 of Trees (Disputes Between Neighbours) Act 2006 (the Act) requires satisfaction of, amongst other things, s 10(2).

1. Section 4(4) of the Act enables a tree that was situated on adjoining land immediately before damage occurred but has since been removed, and which gave rise to an application under Part 2, to be considered.

1. In this matter, the two trees the subject of the application have been removed but the stumps remain. Tree 1 was a Eucalyptus nicholii growing in the front garden of the respondents' property. Tree 2 was a Celtis occidentalis growing in the rear garden. Both trees grew close to the common boundary.

1. The key jurisdictional test in Part 2 is satisfaction of any element of s 10(2). This section states that the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. This application concerns damage caused to property and not injury to any person.

1. The application claim form identifies six areas of damage to the dwelling and ancillary elements that comprise the applicant's property. The damage includes cracking of internal and external walls, cracking of a step and tiled verandah and lifting of paving.

1. The initial claim sought compensation and rectification costs in excess of $130,000. Since then the applicant has reduced the number of elements of damage and the parties have negotiated proposed orders.

1. The claim is now limited to:

• Repair of the cracked masonry wall at the front step; the respondents to pay 100% of the cost;
• Repair of a tessellated tile pathway (described as cracked tiling/terrazzo/ stone finishes on…