Owners Strata Plan 31839 v Alafaci

Land and Environment Court

New South Wales

Medium Neutral Citation:	Owners Strata Plan 31839 v Alafaci & anor [2016] NSWLEC 1083
Hearing dates:	9 March 2016
Date of orders:	09 March 2016
Decision date:	09 March 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted; tree removal ordered
Catchwords:	TREES [NEIGHBOURS] Damage to property, risk of injury; consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSW 152; (2008) LGERA 280 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Owners Strata Plan 31839 (Applicant) Mr L Alafaci and Ms S Lee-Smith (Respondents)
Representation:	Applicant: Mr B Gibson (Agent) Respondents: Mr T Orlizki (Solicitor)     Solicitors: Respondents: Kent Attorneys
File Number(s):	21143 of 2015

Judgment

1. COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of one tree and the pruning of other trees growing on the adjoining property in Belmore.

2. The parties have proposed consent orders to allow for the removal of one tree. Before the Court can agree to the orders proposed by the parties, the Court’s jurisdiction to do so must be engaged.

3. The key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

4. The application concerns seven trees growing in a garden bed at the rear of the respondents’ property. Some of these trees overhang the parking area at the rear of the applicant’s unit block. The main element of the claim is that the roots of one of the trees, identified in an arborist’s report as T3 – a Eucalyptus robusta (Swamp Mahogany) have caused damage to the concrete parking area. Orders are sought for its removal to enable the applicant to remove and replace the car park. Orders were originally sought for the pruning of overhanging branches of other trees so as to avoid damage to parked cars. Whilst not formally listed in the proposed orders, the applicants were also claiming rectification of the concrete car park with a quoted cost of $38,880.

5. The hearing commenced on site with an inspection of the trees from the respondents’ property. I am satisfied that the trees in question are wholly located on that land and are trees to which the Act applies.

6. The alleged damage is the extensive lifting and cracking of the concreted rear of the applicant’s property. The concrete extends to the boundaries with all three adjoining properties. Apart from damage, the applicant is also concerned about the trip hazards created by the lifted slabs.

7. I am…