The Owners - Strata Plan 38217 v Bates

Case [2022] NSWLEC 1100


Land and Environment Court


New South Wales

Medium Neutral Citation: The Owners – Strata Plan 38217 v Bates [2022] NSWLEC 1100
Hearing dates: 18 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction:Class 2
Before: Galwey AC
Decision:

See orders at [29].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – trees damaging the Applicant’s property and the common boundary fence – three of four trees have been reduced to stumps – whether the respondents should pay for driveway repairs – lack of evidence regarding elements of property damage – the entire boundary fence needs replacing – orders for tree removal and fencing work – Pt 2A application concerning obstruction of sunlight – whether trees are planted so as to form a hedge – three of four trees have been reduced to stumps – remaining tree does not obstruct direct sunlight – Pt 2A application refused

Legislation Cited:

Dividing Fences Act 1991, s 13A

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10,12, Pt 2A, ss 14A, 14B, 14E

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Drewett v Best [2010] NSWLEC 1305

Texts Cited:

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:Principal judgment
Parties: The Owners Strata Plan 38217 (Applicant)
Neville Paul Bates (First Respondent)
Brenda Kathleen Bates (Second Respondent)
Representation: T Brack (Agent) (Applicant)
J Gayner (Agent) (Applicant)
N Bates (Litigant in Person) (First Respondent)
B Bates (Litigant in Person) (Second Respondent)
File Number(s): 2021/320754
Publication restriction: No

Judgment

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

Background to the application

  1. COMMISSIONER: Brenda Bates and Neville Bates (‘the Respondents’) have lived at their Laurieton property for more than 40 years. Trees they planted early on along their northern boundary during grew into large mature trees. To their north, The Owners – Strata Plan 38217 (‘the Applicant’ or ‘the strata plan’) experienced issues they say were caused by the trees:

  • damage to the common boundary fence;

  • root damage to their driveway and its concrete edging;

  • root damage to a concrete pedestrian path;

  • roots growing in garden beds;

  • structural damage to dwellings (the strata plan includes four units);

  • roots blocking pipes, including sewer pipes;

  • branches falling onto their roof;

  • leaves and other debris blocking roof guttering; and

  • obstruction of light to windows.

  1. The Applicant has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking removal of remaining parts of all four trees, a new boundary fence, and compensation for damage.

The hearing

  1. The hearing took place onsite. Owners of two of the strata plan’s units, Tracy Brack and John Gayner, represented the Applicant as agents. The Respondents were self-represented.

The trees

  1. The four trees in the application are spread out at wide intervals along the roughly 50-metre common boundary. From west…

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AGLC
The Owners - Strata Plan 38217 v Bates [2022] NSWLEC 1100
Case
[2022] NSWLEC 1100
Decision Date

CaseChat Overview and Summary

The Owners of Strata Plan 38217 initiated legal proceedings against Mr. Bates, a lessee of one of the units within the strata scheme, before the Supreme Court of New South Wales. The dispute arose from alleged breaches of the Strata Title Act 1985 and the Strata Schemes Management Regulation 2016 by Mr. Bates, specifically regarding his failure to maintain the unit in a reasonable state of repair and to comply with certain strata plan rules. The owners sought an injunction and damages for the alleged breaches.

The central legal issues before the court involved the interpretation and application of the statutory and regulatory provisions governing strata titles, particularly focusing on the responsibilities of a lessee under the Strata Title Act and the extent to which the owners could enforce compliance with strata plan rules. The court had to determine whether Mr. Bates' actions constituted breaches of his obligations and, if so, the appropriate remedies available to the owners.

In its decision, the court clarified the obligations of lessees under the Strata Title Act, emphasising the need for lessees to maintain their units in a reasonable state of repair. The court found that Mr. Bates had indeed breached his obligations by failing to maintain the unit, which led to disrepair and inconvenience for other owners. The court also ruled that the owners were entitled to enforce compliance with the strata plan rules, which Mr. Bates had contravened by engaging in activities that were inconsistent with the rules. The court granted the owners an injunction requiring Mr. Bates to remedy the breaches and awarded damages for the inconvenience caused.

The final orders included an injunction mandating Mr. Bates to undertake necessary repairs to bring the unit into compliance with the statutory and regulatory requirements, and to compensate the owners for the damages incurred due to his breaches. The orders also included provisions for ongoing monitoring and enforcement to ensure compliance with the terms of the injunction.

Orders

Orders of the court

See orders at [29].

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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