Dela Cruz v The Owners - Strata Plan No 48059

[2021] NSWLEC 1377

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dela Cruz v The Owners – Strata Plan No 48059 [2021] NSWLEC 1377

Hearing dates:

23 June 2021

Date of orders:

23 June 2021

Decision date:

23 June 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

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 qualified arborist (minimum AQF level 3) with appropriate insurances to remove the three Cocos palms along the common boundary with the applicant’s property to no more than 500 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) Within 7 days of receiving a copy of a receipted paid invoice for the works in order (2), the applicant is to pay the respondent one-eighth of the invoice amount.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage and injury – palms – whether damage or injury is likely – who should pay for tree removal

Legislation Cited:

Land and Environment Court Act 1979, s 22

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:

Bankstown Development Control Plan 2015, Pt B11

Category:

Principal judgment

Parties:

Lanina Dela Cruz (Applicant)
The Owners – Strata Plan No 48059 (Respondent)

Representation:

L Dela Cruz (Litigant in Person) (Applicant)
Z Hemani (Agent) (Respondent)

File Number(s):

2021/103271

Publication restriction:

No

Judgment

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

Background to the application

1. Lanina Dela Cruz (‘the applicant’) has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for the removal of three palm trees on a neighbouring property belonging to The Owners – Strata Plan No 48059. She is concerned that falling fronds and fruit will damage her property or injure someone. She is also concerned about trip hazards and slippery surfaces resulting from debris from the palms, and also about animals coming from the palms onto her property.

2. The respondent is willing to remove the trees, but wants Ms Dela Cruz to pay half the cost.

Framework for this decision

3. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act).

4. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree 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. Then, before making any orders, the Court must consider the matters at s 12 of the Trees Act.

The hearing

5. The hearing took place onsite, allowing for observations of the trees and both properties.

The applicant made reasonable effort

6. Ms Dela Cruz has corresponded with the respondent via email. I am satisfied that she made reasonable effort to reach some agreement.

The trees

7. The three Cocos palms grow on the respondent’s property along the common boundary with Ms Dela Cruz’s property. The palms are little more than a metre from her double-storey dwelling. They reach to roof height. Fronds of two palms are against her roof guttering and resting on her roof. The third palm is not touching the roof, but overhangs the timber deck and outdoor table and seating in her small outdoor living area.

8. Debris that falls from the tree includes fronds, spathes, fruit and so on. Ms Dela Cruz is concerned that the larger debris will injure someone in her outdoor area and that smaller debris will damage the deck, block a stormwater drain, and results in trip hazards.

9. For the smaller debris, the principle in Barker v Kyriakides [2007] NSWLEC 292 would apply here. That is, damage or injury from smaller debris could be avoided by reasonable maintenance.

10. Larger parts of the tree, including fronds, might cause some minor damage to outdoor furniture when they fall, and might cause injury. The risk is sufficient to satisfy the jurisdictional test at s 10(2) of the Trees Act, such that orders might be made.

11. In determining appropriate orders, I have considered the matters at s 12 of the Trees Act, and also s 22 of the Land and Environment Court Act1979, which requires the Court to resolve disputes completely and finally, where possible, within the relevant framework. This is a neighbourhood dispute that involves three trees. The dispute is narrow: who should pay for the trees’ removal?

12. Under the Bankstown Development Control Plan 2015 (Pt B11) the trees are exempt from consent requirements: they are within three metres of a dwelling wall and they are exempt species. Therefore, if the parties had agreed as to contribution to removal costs, the trees would be removed. Ordinarily, a tree owner might be expected to pay for its removal. Here, the respondent wants Ms Dela Cruz to pay half the cost. Ms Dela Cruz pointed out that hers is the only property affected, but the respondent’s Strata Plan includes seven individual property owners. She suggested she should therefore contribute one-eighth of tree removal costs, which I find reasonable in the circumstances described above.

13. Orders will be made for tree removal, leaving only the palms’ stumps, and for Ms Dela Cruz to contribute to the cost of the works. The respondent can remove the remaining stumps should they wish, but this would be at their cost.

Orders

14. As a result of the foregoing, the Court orders that:

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 qualified arborist (minimum AQF level 3) with appropriate insurances to remove the three Cocos palms along the common boundary with the applicant’s property to no more than 500 mm above ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

3. Within 7 days of receiving a copy of a receipted paid invoice for the works in order (2), the applicant is to pay the respondent one-eighth of the invoice amount.

……………………………….

D Galwey

Acting Commissioner of the Court

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