The Owners - Strata Plan 38217 v Bates

[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.

2. 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

3. 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

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