Owners Corporation Strata Plan 78206 v Asher

[2007] NSWLEC 849

Land and Environment Court

of New South Wales

CITATION:

Owners Corporation Strata Plan 78206 v Asher [2007] NSWLEC 849

PARTIES:

APPLICATION
Owners Corporation Strata Plan 78206

RESPONDENT
Bevan Asher

FILE NUMBER(S):

20937 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of a tree, damage to property, risk of injury to people.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

10/12/2007

EX TEMPORE JUDGMENT DATE:

10 December 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms A. Bolton and Mr O. Pilon, litigants in person

RESPONDENT
Mr B. Asher, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

10 December 2007

20937 of 2007 Owners Corporation Strata Plan 78206 v
Bevan Asher
JUDGMENT

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

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated on 47 Bardo Road, Newport (the property). The property is owned by Mr Bevan Asher.

2 The tree is a Silky Oak (Grevillea robusta).

3 The application has been made by The Owners Corporation, Strata Plan 78206 of 49 Bardo Road Newport, the adjoining property to the west of the tree. The Owners Corporation is represented by Ms Annette Bolton and Mr Owen Pilon, members of the Executive Committee.

4 The application seeks orders from the Court that the tree be removed as it is dead, in order to avoid risk of injury to people and to prevent damage to property.

5 The application also seeks compensation for building damage at 3/49 Bardo Road, and for the cost of the application to the Court and associated paperwork.

6 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

7 These tests are:

Has the tree caused damage to the applicant's property?
Is the tree now causing damage to the applicant's property?
Is the tree likely in the near future to cause damage to the applicant's property?
Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

9 I have examined the tree and the nearby areas of the applicant’s property, and have considered the information provided by the parties.

10 I have reached the following conclusions with respect to this matter.

11 The tree is dead. It is still standing and has a height of approximately 12 m but large dead branches have broken out and some are lying in the yard of 3/49 Bardo Road. Parts of the tree are likely to collapse in the near future. The tree does not provide any visual amenity to the area.

12 The parties are in reasonable agreement that the larger trunk of the tree was dead, and the smaller trunk had some leaves but was in decline at the time development began on 49 Bardo Road in 2005.

13 I am satisfied that the development of 49 Bardo Road may have slightly hastened, but did not cause the death of the tree.

14 I am also satisfied that the tree is likely to have caused the damage to roof tiles, guttering and eaves of 3/49 Bardo Road.

15 I advise that the cost of the application to the Court and associated paperwork by self represented applicants is not a compensatable matter.

16 I note that the parties have come to agreement about removal of the tree, compensation for building damage and other matters.

17 I also note that having reached that agreement, the applicant no longer requests that the Court make any orders.

18 I therefore dismiss this application, noting the following agreement between the parties:

1. Mr Asher will pay the full cost of the repairs to the roof and guttering, and the painting of the eaves, being a total of $495.00. He will make a cheque for that amount to the Owners Corporation strata manager and will hand over that cheque by the evening of 10 December 2007;
2. Mr Asher will have the tree removed by Christmas 2007 if possible, otherwise by the 31 January 2008. The tree removal will be done at Mr Asher’s cost;
3. The applicant will pursue the matter of screening between its property and Mr Asher’s property, and gives a commitment to provide some degree of screening by 31 March 2008. The screening shall be by plants and/or lattice work, and shall be effective in the areas that are of most concern to Mr Asher. The details of the screening shall be sorted out between Mr Asher and the Owners Corporation.

___________________

Peter Thyer
Acting Commissioner of the Court