Choi v Elliston

[2013] NSWLEC 1185

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Choi v Elliston & anor [2013] NSWLEC 1185
Hearing dates:	26 September 2013
Decision date:	01 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld; wall to be repaired at respondents' expense
Catchwords:	TREES [NEIGHBOURS] Damage to a wall; risk of injury; Consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Dr James Choi (Applicant) Mrs Jane Elliston (First Respondent) Mr Peter Elliston (Second Respondent)
Representation:	Applicant: Dr Choi (Litigant in person) Respondents: Ms C Renner (Solicitor) Respondents: Gadens Lawyers
File Number(s):	20384 of 2013

Judgment

1. COMMISSIONER: The applicant owns a property in Clontarf. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of one palm and its stump and the removal of another palm stump from the respondents' property. In addition he is seeking the rectification of a section of brick wall he contends has been damaged by the palms. All work is to be undertaken at the respondents' expense.

1. The applicant is also seeking costs, however Commissioners do not have the jurisdiction to award costs. A separate Notice of Motion would have to be made and determined by a Judge or Registrar of the Court.

1. The respondents do not contest the application in principle. The issue in dispute is the extent of the wall to be replaced.

1. In applications under Part 2 of the Act, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

1. It is clear from the photographic evidence, engineer's reports for both parties, and from the site inspection that pressure exerted by the palms has displaced and cracked a masonry wall at the front of the applicant's property.

1. Therefore, I am satisfied to the necessary extent that the trees have damaged the applicant's property and the Court's power to make orders under s 9 is engaged.

1. While there was a difference in the opinions of the engineers as to the extent of the damage, I am not satisfied on the evidence that a distant vertical crack identified in the Cruickshank report (for the applicant) is attributable to the palms. The respondents' engineer, Mr Mateffy was at the hearing and in his opinion the crack could be a result of differential settling of footings or normal expansion and contraction and it was unlikely to have been caused by the palms. Therefore no orders will be made for its rectification at the respondents' expense.

1. The parties agreed on the extent of the wall to be removed and replaced and the process by which this is to occur; consent orders were then discussed and drafted.

1. Therefore, by consent, the Orders of the Court are:

(1)   Within 30 days of the date of these orders the parties are each to obtain:

(a)   2 itemised quotes from licensed contractors for demolition and reinstatement of the damaged section of wall, being:

(i)   The northern wall from the eastern corner to 800mm west;

(ii)   The eastern wall from the northern corner to a distance 3.6 metres south; and

(iii)   The eastern wall single brick panel element for an additional 1m past the 3.6 metres referred to above.

In relation to (i) and (ii) the quotation should include 2 different estimates, one based on non-replacement of footings, and the other including replacement of footings. The quotations must include rendering and painting of the reinstated section of wall, disconnection/relocation of any services, and removal and reinstatement of the aluminium privacy panel on top of the section of wall referred to in (iii).

(b)   A quote from a private certifier to assess whether the works are Complying Development or will require a DA, including a quote for acting as a certifier in relation to an application for a Complying Development Certificate (in the event that the certifier forms the view that the works are Complying Development).

(c)   A quote from a structural engineer to prepare a plan for reinstatement of the wall, and to attend necessary site inspections during demolition and construction.

(2)   The parties are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by the parties to assess the wall for the purpose of providing quotations.

(3)   Within 35 days of the date of these orders the parties are to agree on one of the quotes in each of 1(a) to 1(c) above or, if they cannot agree, select the cheapest quote.

(4)   If Development Consent is required for the works, the Chois must liaise with the Ellistons and obtain their approval of a consultant's quotation before appointing any consultant to assist in the preparation of the development application. If the Ellistons do not approve of the quotations obtained by the Chois, the parties have a further period of 30 days in which they are each to obtain up to 2 quotations for the work. If they cannot agree on one of those quotations within a further 5 days, they are to select the cheapest quote.

(5)   The Chois are to obtain either a Complying Development Certificate or Development Consent for the works, and must provide a copy of the Complying Development Certificate or Development Consent and any approved plans to the Ellistons within 10 business days of receipt by the Chois.

(6)   The Chois are to engage and pay for the selected contractor in (3) to carry out the works approved in (5).

(7)   Within 5 days of demolition of the relevant portions of the wall, the Ellistons are to arrange (and pay) for removal of the 2 palm tree stumps on 83A Cutler Road, to the depth of the footings, by an arborist holding a minimum Certificate II in Horticulture (Arboriculture), with the removal to occur in conjunction with the works referred to in (5).

(8)   The parties are to grant access to their properties for the purpose of carrying out the works, subject to:

(a)   Service on the Ellistons of the approval and plans under (5);

(b)   Provision of reasonable notice of the dates and times on which access is required; and

(c)   Proof of insurances by any contractor requiring access.

(9)   If the works by the Chois envisaged by (5) are not completed within 12 months of the date of these orders, the parties have liberty to apply.

(10)   The Ellistons are to reimburse the Chois for the cost of the works within 30 days of receipt of an invoice from the Chois for the completed works.

(11)   The Court notes that each party is to bear their own costs of the proceedings.

__________________________

Judy Fakes

Commissioner of the Court

Amendments

22 November 2013 - Decision date amended to 1 October 2013.

Amended paragraphs: Coversheet

02 October 2013 - Typographical error class '1' changed to class '2'

Amended paragraphs: Coversheet