Andelman v The Owners - Strata Plan No 4829

[2019] NSWLEC 1533

Land and Environment Court

New South Wales

Medium Neutral Citation:	Andelman v The Owners – Strata Plan No 4829 [2019] NSWLEC 1533
Hearing dates:	30 October 2019
Date of orders:	30 October 2019
Decision date:	30 October 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application is granted. (2)   Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor with all appropriate insurances to cut and remove the climbing fig plants growing along the boundary fence shared with the applicants, and poison any remaining parts of the climbing figs. (3)   On reasonable notice, the applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – boundary fence – climbing fig is a tree for the purposes of the Trees Act – the climbing fig has only been partly removed – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Trees (Disputes Between Neighbours) Regulation 2019
Category:	Principal judgment
Parties:	Larissa Andelman (First Applicant) Louis Schetzer (Second Applicant) The Owners – Strata Plan No 4829 (Respondent)
Representation:	Louis Schetzer (Litigant in person) (Applicants) A Devine (Agent) (Respondent)
File Number(s):	2019/247843
Publication restriction:	No

Judgment

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

The application

1. Larissa Andelman and Louis Schetzer (‘the applicants’) have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for the removal of a neighbouring climbing fig. They also sought an order for costs, for which they would need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.

Background

2. The applicants’ property adjoins, and is upslope from, the respondent’s. A solid retaining wall along the common boundary supports the higher land on the applicants’ property. Another retaining wall, set back from the boundary on the respondent’s land, supports a garden bed between their building and the boundary. That second retaining wall is partly collapsing, but that is a matter not related to issues in these proceedings.

3. The paling fence along this part of the common boundary, atop the boundary retaining wall, was replaced some seven or eight years ago. Several climbing fig (Ficus pumila) plants growing in the respondent’s raised garden have grown over and through parts of this fence. The applicants say it is damaging the fence. They have spoken with individual owners of dwellings in the neighbouring building, asking for the climbing fig to be removed, but the respondent took no action. They unsuccessfully sought mediation with the respondent. According to Mr Devine, a member of the Strata Plan’s committee and an owner of one of the dwellings, he and another owner tried removing the climbing fig but they found the task too onerous and realised they need a contractor. The climbing fig has been removed along the rearmost part of the fence, but remains on the section closer to the applicants’ dwelling.

Findings

4. The onsite hearing enabled inspection of the fence and the climbing fig. Remnants of cut stems show where climbing fig plants were recently cut and removed along the rear section of the fence. Stems have apparently been poisoned. Some foliage on the fence is now dead, so grew from the cut plants. However, closer to the dwelling live foliage remains on the fence. I observed some stems arising from within the respondent’s garden bed, but sections were obscured by other vegetation. On the applicants’ property, it was apparent that all parts of the climbing fig along this common boundary originate on the respondent’s land and grow between or over the palings. No climbing fig stems emerged from the ground on the applicants’ side of the fence.

5. Where the climbing fig grows between palings, it pushes them apart. The climbing fig is damaging the fence and will continue to do so.

6. I am satisfied that the climbing fig is principally situated on the respondent’s land, which adjoins the applicants’ (s 7 of the Trees Act). According to s 4(c) of the Trees (Disputes Between Neighbours) Regulation 2019, the definition of ‘tree’ includes ‘any plant that is a vine’, such as the climbing fig. I am satisfied that the climbing fig is damaging the boundary fence (s 10(2)(a) of the Trees Act). I am also satisfied that the applicants have made reasonable effort to reach agreement with the respondents, as required by s 10(1). It follows that I can make orders to prevent further damage to the fence. To achieve this, there is no reasonable alternative to removal of the remaining climbing fig plants, which would otherwise continue to grow vigorously. The respondent will pay for the works, as the climbing fig plants grow on their land.

Orders

7. As a result of the foregoing, the Court orders:

1. The application is granted.

2. Within 30 days of the date of these orders, the respondent is to engage and pay for a suitably experienced contractor with all appropriate insurances to cut and remove the climbing fig plants growing along the boundary fence shared with the applicants, and poison any remaining parts of the climbing figs.

3. On reasonable notice, the applicants are to allow all access required to complete the works ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 04 November 2019