Zapata v Strata Plan 42882 - [2008] NSWLEC 1218

Land and Environment Court

of New South Wales

CITATION: Zapata v Strata Plan 42882 [2008] NSWLEC 1218

PARTIES:
APPLICANT
Adela Zapata
RESPONDENT
Strata Plan 42882

FILE NUMBER(S): 20201 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :- Removal of trees, risk of injury to persons, damage to property, erection of a sediment control fence and restrictions of future plantings.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 26/06/2008

EX TEMPORE JUDGMENT DATE: 26 June 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms A. Zapata, litigant in person
RESPONDENT
Strata Plan 42882, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

26 June 2008

20201 of 2008 Adela Zapata v Strata Plan 42882

JUDGMENT

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

Trees (Disputes Between Neighbours) Act 2006.

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Adela Zapata of 14 Frederick Street Hornsby concerning trees on the common property of Strata Plan 42882 at 12 and 12a Frederick Street Hornsby. Lot 1 (12 Frederick Street) is owned by Mr Stan Denham and Lot 2 (12a Frederick Street) is owned by Mrs Suk Lam. The common property in this matter is the driveway on the western side of the property that adjoins the applicant’s property.

2 The applicant was originally seeking the removal of a Cocos palm, removal of all trees in the driveway within 3m of her house, removal of all activities in the driveway garden that impede the repositioning of a brick wall and colour-bond fence back to the boundary line, the erection of a sediment control fence along the edge of the driveway garden, and restrictions on future plantings.

3 The applicant made the application on the basis of risk of injury to persons and to rectify/ prevent damage to property. The applicant is particularly concerned that the Cocos palm will fall onto her house. The applicant also contends that the trees are causing damage to a low brick wall and to the colour-bond fence.

4 As a result of the discussions at the on-site hearing, the applicant stated that she would be happy with the removal of the Cocos palm and a cotoneaster and with restrictions placed on future plantings and would forgo the other issues

5 The two trees in question are located in a narrow garden bed located between the respondents’ driveway and the dividing fence. The Cocos palm is a mature specimen planted approximately…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zapata v Strata Plan 42882

Details

AGLC: Zapata v Strata Plan 42882 [2008] NSWLEC 1218
Case: [2008] NSWLEC 1218
Decision Date: 26 June 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Mrs Adela Zapata applied for orders under section 7 of the Trees (Disputes Between Neighbours) Act 2006 against Strata Plan 42882, concerning trees on the common property of the strata title at 12 and 12a Frederick Street Hornsby. The trees in question were located in a narrow garden bed between the respondents' driveway and the dividing fence, specifically a Cocos palm and a Cotoneaster. Mrs Zapata sought the removal of these trees, along with other related matters, due to concerns about potential injury to persons and damage to property. The primary issue was the displacement of a low brick wall and an associated colour-bond fence, caused by the growth of the Cocos palm.

The legal issues that the court had to decide included whether the trees had caused, were causing, or could cause damage to property or injury to persons. Additionally, the court needed to determine whether the removal of the trees was necessary and if there were any alternative measures that could be taken to mitigate the damage. The court also had to consider whether there were other contributing factors to the damage besides the trees.

The court found that the Cocos palm was indeed causing damage to the brick wall and fence due to its location and proximity. It was noted that the wall was not designed as a retaining wall, and the subsequent construction and runoff from the driveway exacerbated the problem. The court concluded that the fear of the palm falling onto the house and causing injury was unfounded. However, it was determined that some remedial action could be taken regarding the Cotoneaster, which was located further away from the brick wall. Therefore, the application to remove the Cocos palm was allowed, but the application to remove the Cotoneaster was refused. The court issued orders for the removal of the Cocos palm to ground level and the installation of a root barrier along the boundary line from the concrete retaining wall. The costs of these works were to be borne by the owners of Strata Plan 42882, and the removal of the palm was to be carried out within 90 days, while the installation of the root barrier was to be completed within six months.

Orders