The Owners Corporation SP 1932 v The Owners Corporation SP 1027

[2015] NSWLEC 1354

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners Corporation SP 1932 v The Owners Corporation SP 1027 [2015] NSWLEC 1354
Hearing dates:	26 August 2015
Date of orders:	26 August 2015
Decision date:	26 August 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property, retaining wall; location and ownership of wall.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Shagrin v O’Neil [2010] NSWLEC 1368 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	The Owners Corporation SP 1932 (Applicant) The Owners Corporation SP 1027 (Respondent)
Representation:	Applicant: Mr P Dunbar-Hall (Agent) Respondent: Did not attend
File Number(s):	20241 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees(Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the replacement of a retaining wall between the parties’ Neutral Bay properties and the removal of a White Cedar tree (Melia azedarach) growing on the respondent’s property.

2. Before discussing the substance of the matter it must be noted that the hearing commenced on site at the appointed time and location specified in the Court’s supplementary directions forwarded to the parties by a listings officer on 15 July 2015. There was no attendance from the respondent property owners or their agent. The matter has been before the Assistant Registrar for directions on three occasions, the first being 19 May 2015. I see from the notes on the file cover and from the supplementary directions that the respondent did not attend any directions hearing. I am satisfied from the Affidavit of Service sworn on 19 June 2015 that the managing agents for the respondent property were properly served with the original directions and were on notice of the hearing. I am also satisfied that the supplementary directions were copied to those agents. Similarly, there is correspondence in the application claim form that proves the applicant has raised the matter of the tree and the wall with the respondent’s managing agents on several occasions since 2008. On this basis I determined that the managing agents for the respondent property were fully aware of the proceedings and I proceeded to hear the matter in their absence. However, the tree could not be inspected from the respondent’s land but it could be easily seen from the applicant’s land.

3. The applicant contends that the roots of the tree are causing the leaning and cracking of the retaining wall between the parties’ properties. The concern is that the wall will fail and fall onto the applicant’s property and potentially cause damage to any car that may be parked in the applicant’s driveway. In addition, the applicant is concerned that when the wall collapses, the tree will be destabilised and fall onto the applicant’s property potentially causing damage to the roof, a number of balconies and the driveway.

4. The applicant engaged a Structural Consulting Engineer to prepare a report. The report describes the location and extent of the damage. The author concludes that given the proximity of the tree to the wall and the continued growth of the tree, that pressure from the roots will continue and, it is implied, the wall will eventually collapse. The engineer states that in order to rebuild the wall, the tree would need to be removed and the roots cut back. The engineer expresses some uncertainty as to which property owns the wall and makes the suggestion that a survey could be obtained.

5. Section 7 of the Act states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

6. That is, the property is property on the applicant’s land, and the tree is a tree on adjoining land being the respondent’s land.

7. In this matter, in response to question 4 in the application claim form, the applicant states that the retaining wall belongs to the respondent property. Absent a survey to verify this, if this is the applicant’s position, the Court must accept this statement. If this is true, the tree is clearly on the respondent’s land, and is highly likely to be the main cause of the damage to the wall. However, the effect of this information is that the Court has no jurisdiction under the Trees Act over damage to property that is situated on the respondent’s land – see Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020 and Shagrin v O’Neil [2010] NSWLEC 1368. If a survey found the wall to be at least partly on the applicant’s land, the Court’s jurisdiction to consider the wall would be engaged.

8. Therefore, on the applicant’s evidence, the application in respect of the wall must be dismissed.

9. The other element of the applicant’s claim is that if the wall fails, the tree may fall onto the applicant’s property. The relevant 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.

10. Injury is not pressed.

11. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

12. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. The applicant did not provide any independent arboricultural evidence to support the claim of likely whole tree failure. With the arboricultural expertise I bring to the Court, when viewed from the applicant’s land, I saw nothing that would lead me to conclude that the tree was unstable. However, this observation was limited to observing the form of the tree and noting the absence of any lean in the tree as opposed to the lean of the wall. No evidence was adduced that the tree had caused or is causing damage to the applicant’s property.

13. As no element of s 10(2) is satisfied to the extent required by the Act, the Court’s jurisdiction to make orders under s 9 is not engaged and the matter must be dismissed.

14. The applicant’s representatives raised the prospect of a fresh application. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.

15. However, as a consequence of the forgoing, the Orders of the Court are:

1. The application is dismissed.

________________________

Judy Fakes

Commissioner of the Court

20241 of 2015 (15.8 KB, pdf)

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Decision last updated: 27 August 2015