The Eucalyptus Can Stay, and You Pay Costs

Lunt v Owners Corporation of Strata Plan 15785 [2008] NSWLEC 1276

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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Quick Read

This 2008 decision by the NSW Land & Environment Court is about a dispute over a Bondi strata title building’s eucalyptus trees and a neighbour’s demand for their removal and damages and costs. The neighbour claimed that the trees were dropping branches and leaves onto his roof and grew roots into drains, causing damage to those structures, incurring costs to remove them, and leading to a damages claim by his tenants. The key issue was how sections 9, 10 and 12 of the Trees (Disputes between Neighbours) Act 2006 applied and whether the evidence warranted tree removal orders and damages.  After considering the law, the evidence, and a site inspection, the NSW Land & Environment Court approved the strata building’s arborist that the trees were not causing or likely to cause damage within 12 months, that clearing leaves and branches was normal property maintenance, and that the damages weren’t recoverable. It also ordered the neighbour to pay some of the strata buildings costs because of the week evidence he had provided.

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Implications

The key implications of this strata case are as follows.

• Tree removal orders under section 12 need the Court to be satisfied that trees cause or are  likely to cause damage to property or injuries.

• Other contributing factors and preventative actions are also relevant.

• The strata building’s arborist’s report [confirmed by the site inspection], established that the trees were not causing damage or likely to in the future.

• The decision in Yang v Scerri means that the Court only needs to consider possible future damage for 12 months.