The Owners - Strata Plan 6636 v Bickley

[2015] NSWLEC 1109

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners - Strata Plan 6636 v Bickley [2015] NSWLEC 1109
Hearing dates:	22 April 2015
Date of orders:	22 April 2015
Decision date:	22 April 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld – see [10]
Catchwords:	TREES [NEIGHBOURS] Consent orders; damage to property; apportionment of rectification costs.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Act 2005
Category:	Principal judgment
Parties:	The Owners - Strata Plan 6636 (Applicant) Leslie Bickley (Respondent)
Representation:	Counsel: Applicant: Mr C Prestipino (Solicitor) Respondent: Mr S Latham (Solicitor) Solicitors: Applicant: Jane Crittenden Lawyer Respondent: Stuart Latham Lawyer
File Number(s):	20031 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, amongst other things, the removal of a number of trees growing on an adjoining property in Freshwater, compensation for damage to a retaining wall and garage on the applicant’s land alleged to have been caused by the respondent’s trees, and costs.

2. The parties are seeking consent orders from the Court. Before the Court’s powers under s 9 of the Act can be engaged to make those orders, there are a number of jurisdictional tests that must be satisfied

3. With the benefit of the site inspection I am satisfied that the 10 trees in question are located on the respondent’s land. There is no dispute between the parties that the retaining wall is located on the common boundary and the garage is on the applicant’s land.

4. Included in the application and claim form submitted by the applicant are an arborist’s report and a report from a building consultant. The reports include a number of photographs of the trees and the damage to the wall. The location of the trees and their relationship to the cracking and displacement of the wall was noted on site.

5. The key jurisdictional test in applications made under Part 2 of the Act is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person. The risk of injury is not pressed.

6. I am satisfied on the physical evidence and by the reports that at least three of the trees are in direct contact with the wall are contributing to its failure. I am also satisfied on the arborist’s evidence that several other trees may be relying on the wall for their support and may need to be removed once the wall is removed prior to its reconstruction.

7. Apart from the trees, the building consultant’s report identifies the inadequate footings and the unreinforced block-work of the wall as other factors contributing to its failure.

8. To that end, the parties have agreed on the apportionment of costs for the replacement of the wall and other associated works.

9. Therefore I am satisfied that the Court’s jurisdiction to make the orders sought by the parties is engaged. With respect to the issue of costs, Commissioners do not have the jurisdiction to order payment of ‘costs’ within the meaning of the Uniform Civil Procedure Act 2005 and the Land and Environment Court Rules 2007. A Notice of Motion must be made which would then be heard by a Registrar or Judge of the Court.

10. Therefore, by consent the Court orders:

1. The Respondent, at his own expense, is to have trees T6, T9, and T10 removed and grind the stumps of these trees in accordance with the recommendations set out in the Arborist Report of Paul Shearer dated 28 August 2014, on or before 21 May 2015.

2. The Respondent, at his own expense, is to have an AQF5 level arborist present when the Applicant’s damaged retaining wall is removed to determine whether trees T5 and T7 are reliant on the retaining wall for support. If it is determined that they are reliant on the retaining wall for stability, then these trees are to be removed immediately, at the expense of the Respondent, in accordance with the recommendations set out in the Arborist Report of Paul Shearer dated 28 August 2014.

3. The Respondent is to pay the Applicant the sum of $7,500.00 compensation for damage to the Applicant’s retaining wall on or before 21 May 2015.

4. The Court notes the agreement between the parties that the Applicant is to pay all of the costs to remove and replace the Applicant’s said retaining wall.

___________________________

Judy Fakes

Commissioner of the Court

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