Land and Environment Court
New South Wales
Medium Neutral Citation: Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Hearing dates: 21 April 2011 Decision date: 12 May 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; two trees ordered for removal
Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of iconic view Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Wisdom v Payn [2011] NSWLEC 1012
Tenacity Consulting v Warringah [2004] NSWLEC 140
Tooth v McCombie [2011] NSWLECCategory: Principal judgment Parties: Mr D Ridley (Applicant)
The Owners Strata Plan No. 60662Representation: Mr A Perkins (Solicitor for the Applicant)
Mr D Loether (Solicitor for the Respondent)
Colin Biggers and Paisley
Bartier Perry
File Number(s): 21039 of 2010
Judgment
COMMISSIONER: This is an application pursuant to s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property at 13 Le Vesinet Drive, Hunters Hill against the owner of palm trees growing between Blocks B and C Strata Plan 60662 - Pulpit Point, 2-10 Le Vesinet Drive.
The application
The applicant seeks the following orders:
(1) The removal and disposal of the Palm Trees situated between the access area between Lots 2-10 and Lots 11-20 of SP60662.
(2) That any further planting of trees or vegetation at the relevant location be limited to plants and trees to the height of the adjacent approved building (at maturity).
These orders are sought on the basis that the trees severely obstruct views across Fern Bay of the Harbour Bridge and parts of the harbour from his dwelling. The original application identified 13 palms in dispute. The applicant subsequently limited the scope of the application to 6 palms marked T1 - T6 on a survey plan by Proust & Gardner Consulting Pty Ltd dated 24.02.2011. However, the respondents' arborist Mr P Castor of the Tree Wise Men surveyed the trees on 21.03.2011 and noted the omission of two trees. Proust & Gardner Consulting Pty Ltd produced an amended survey dated 20 April 2011 to include the missing trees. An application to amend the application to apply to trees 1-8 was allowed.
The trees are Washingtonia robusta (Mexican Fan Palm) planted in terraced garden beds between the garages at the rear of Buildings B and C and close to the Le Vesinet Drive frontage. The respondent's buildings step down the slope towards the water. The respondent's property is located across the road and directly opposite the applicant's dwelling. In the matter of P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 it was held that trees located across a public street are on 'adjoining land'; the parties agreed that the Court has jurisdiction to hear the matter.
The applicant states that he purchased his property in August 2006. The house was tenanted from August 2006 to May 2008. From the applicant's affidavit (exhibit A)…
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- Case
- [2011] NSWLEC 1107
- Decision Date
CaseChat Overview and Summary
The central legal issues for the court were whether the trees constituted a nuisance and if their removal was necessary for the safety and amenity of the common property. The court considered the nature of the nuisance, the potential harm to property and safety, and the rights and responsibilities of the parties under the Strata Titles Act 1985. The court also evaluated the impact of the trees on the overall enjoyment and use of the common property by the residents.
The court determined that the trees did indeed constitute a nuisance and that their removal was necessary to ensure the safety and amenity of the common property. The court emphasised that the owners of the strata scheme had a duty to maintain the common property in a safe and enjoyable condition for all residents. The court found that the trees in question posed a significant risk of falling and had already caused some damage, justifying their removal. The court also considered the aesthetic and recreational value of the common property, which had been compromised by the presence of the trees.
The Supreme Court of Queensland upheld the application in part, ordering the removal of the two trees from the common property of the residential strata scheme. The court's decision recognised the balance between the rights of individual lot owners and the collective responsibility to maintain the common property for the benefit of all residents.
Orders
Orders of the court
Application upheld in part; two trees ordered for removal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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