Fryday v The Owners - Strata Plan No 15039

Land and Environment Court

New South Wales

Medium Neutral Citation:	Fryday v The Owners – Strata Plan No 15039 [2019] NSWLEC 1150
Hearing dates:	13 March 2019
Date of orders:	01 April 2019
Decision date:	01 April 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) Pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW), respondents 1–5 listed on the application (P Richter, V Richter, J Baker, S Scott and R Jopling) are removed as parties to this matter, leaving The Owners – Strata Plan No 15039 as the only respondents.  (2) The application is refused.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – damage to property – sewer – Part 2A application – whether the trees form a hedge – severity of sunlight obstruction – severity of view obstruction – whether views and sunlight were previously available to the applicant
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Coleman & anor v Leddy & anor [2013] NSWLEC 1094 Holland v Bell [2017] NSWLEC 1322 Johnson v Angus [2012] NSWLEC 192 Lord v Grech; Brooke v Grech [2015] NSWLEC 1190 McDougall v Philip [2011] NSWLEC 1280 Price & anor v Harrison & anor [2013] NSWLEC 1149 Summers v Kumar [2019] NSWLEC 1041 Wisdom v Payn [2011] NSWLEC 1012
Texts Cited:	Review of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Category:	Principal judgment
Parties:	Mark Fryday (Applicant) The Owners – Strata Plan No 15039 (Respondents)
Representation:	M Fryday, litigant in person (Applicant) P Richter, agent (Respondents)
File Number(s):	2018/307449
Publication restriction:	No

Judgment

The application

1. Next to Mark Fryday’s Fairlight property, a row of tall, slender cypress trees grows alongside a neighbouring driveway. Mr Fryday has applied to the Court seeking orders for sewer pipe repairs and tree pruning, pursuant to both s 7 (Part 2) and s 14B (Part 2A) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’).

2. The application was initially made against individual owners of dwellings on the neighbouring Strata Plan. The trees grow on common property belonging to the owners of the Strata Plan. An earlier direction of the Court joined The Owners – Strata Plan No 15039 as respondents but did not remove the individual respondents. Any orders made should only apply to the owners of the Strata Plan. Therefore, pursuant to r 36.16(3B) of the Uniform Civil Procedure Rules 2005 (NSW), I include in the orders made below the removal of the five individual respondents named in the original application.

The Part 2 application

3. Mr Fryday’s Part 2 application seeks compensation for repairing his sewer pipe and orders for all trees in the row to be pruned, on the grounds that roots from the trees have blocked his sewer pipe.

4. Mr Fryday obtained an estimate from Royal Flush Plumbing with options for replacing or relining his sewer pipe. His preference was that the pipe be relined, the estimated cost of those works and other costs…