Owners of Strata Plan 1803 v Owners of Strata Plan 67473
[2013] NSWLEC 1200
•22 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Owners of Strata Plan 1803 v Owners of Strata Plan 67473 [2013] NSWLEC 1200 Hearing dates: 22 October 2013 Decision date: 22 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld in part; annual removal of dead fronds
Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; property on respondent's land Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Dividing Fences Act 1991Category: Principal judgment Parties: The Owners of Strata Plan 1803 (Applicant)
The Owners of Strata Plan 67423 (Respondent)Representation: Applicant: Ms D Lawler (Agent)
Respondent: Mr R Krochmalik (Agent)
File Number(s): 20593 of 2013
Judgment
COMMISSIONER: The applicant in this dispute seeks orders for the removal of a mature Phoenix canariensis (Canary Island Date Palm), the rectification of a retaining wall, and the sharing of costs for the installation of a timber, paling dividing fence between the parties' properties.
The applicant contends that the root ball has encroached onto the applicant's land and has displaced and damaged a section of retaining wall between the parties' properties. The applicant is also concerned that dead fronds falling from the palm could cause damage to property on the applicant's land or injury to anyone in the vicinity. During the hearing, the applicant's agent also raised concerns about the tree's stability and the possibility of it failing onto their property.
The respondent does not wish to remove the palm.
The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).
There are three main elements of the application - the brick wall, the palm and dividing fence.
The retaining wall
Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land, that is, the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land.
A survey produced by the respondent's agent shows the retaining wall to be wholly located on the respondent's land. As a result, it is beyond the jurisdiction of the Trees Act to make any orders with respect to the wall.
In making the application under the Trees Act, the applicant has not sought to engage s 13A of the Dividing Fences Act 1991 (the Fences Act) as a means of achieving the repair of the fence, an option available to them.
Therefore, similarly, the Court has no jurisdiction to make any orders and therefore this element of the application is dismissed. However, nothing in this judgment prevents the respondent from undertaking any necessary action to ensure the structural integrity of the wall.
The dividing fence
The applicant seeks orders to require the respondent to contribute 50% of the cost of the installation of an extension of the dividing fence in the vicinity of the tree.
Question 17 in the Part 2 application claim form enables an applicant to engage s 13A of the Dividing Fences Act 1991 in regards to any portion of a dividing fence that has not been damaged by the tree.
As stated above, the applicant elected not to engage the Fences Act, and therefore the Court has no jurisdiction to consider the matter any further.
The palm
The key jurisdictional test under this Part 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.
The palm is a mature Canary Island Date Palm growing on the respondent's property close to the common boundary.
The tree appears healthy. There is a young epiphytic fig growing on the trunk. The tree retains many dead fronds. Photographic evidence shows a number of fronds on the applicant's property, including several in a small courtyard.
Mr Malcolm Coote, Waverley Council's Tree Management Officer attended the hearing and assisted the Court. He agreed that the dead fronds are heavy and have rigid spikes at their base. These spikes could cause injury. He also opined that unless further shaving of the root plate occurred, the palm was unlikely to fail.
Mr Coote stated that in undertaking its routine tree maintenance program, the council aims for the annual removal of dead fronds from Canary Island Date Palms.
Findings and orders
The falling of dead fronds is predictable and certain. I am satisfied that fronds falling from the palm could cause damage to property on the applicant's land and could cause injury to any person be they on the applicant's or respondent's land. Therefore s 10(2) is satisfied and the Court's powers to make orders under s 9 are engaged.
I am not satisfied that the removal of the palm is warranted and I consider it is sufficient to require the annual removal of dead fronds.
Therefore, the Orders of the Court are:
(1) The application is upheld in part.
(2) The respondent is have engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the dead fronds from the Canary Island Date Palm from the western boundary of 390 Bronte Road Bronte. The work is to be completed by 5.00pm 29 November 2013.
(3) The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4) The works in (2) are to be undertaken on an annual basis within two weeks either side of the anniversary of the first pruning for the life of the tree.
(5) The applicant is to provide all necessary access for the works in (2) and (4) to be carried out in a safe and efficient manner.
________________________
Judy Fakes
Commissioner of the Court
Decision last updated: 22 October 2013
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