August 11, 2020 at 4:11 pm #235081HarbardMember
We have a tree/shrub dispute (bamboo shrubs originating in neighbours yard infiltrated our gardens etc) with the neighbour. I understand this falls under “Class 2: tree disputes and local government appeals.”
Our building committee are currently investigating taking this matter to the land and environment court. My questions are:
1. who can / who best to lodge the application? The building committee, the strata agent or a practising solicitor? Roughly how much could we expect the fee to be for having someone prepare and lodge the application?
2. how does the process work? I’m told after we lodge the court will call for mediation where both sides sit down with a mediator. If we do not settle the matter then, what happens next?
3. I’m told the court is “user-friendly” and is set-up for normal people to self-represent. So this implies that using a solicitor for the court process isn’t common nor necessary. Can you please comment.
4. How does the awarding of costs work? We firmly believe that we are in the right (have lots of evidence and are getting experts reports) and that the other party has not played ball nor entered into any discussion over our issues, which we first flagged with them in September 2019. They have continued to ignore our emails and phone calls nor engage in a constructive way.
Many thanks in advance.August 19, 2020 at 10:10 pm #235407Amanda FarmerExpert
I have delayed my response to this one a little longer than usual in case anyone else wanted to jump in!
Apparently not…so here goes…
1. Your application will be lodged in the name of the Owners Corporation but I assume you are asking: who should represent the Owners Corporation before the court? Your strata manager is probably going to opt-out of that pretty quickly : they will feel that they aren’t qualified to appear in a court setting, which is a little more formal than the Tribunal, where I see strata managers often appear.
Although the Land and Environment Court is set up to be user-friendly and there are some excellent guides on their website, self-representation is still a big undertaking, so unless there is someone on the committee willing to take the time out to lead this charge, you may be best placed to obtain legal representation. I do believe that a reasonably intelligent, dedicated committee member with a little time on their hands could easily manage a tree dispute in the L&E court, it’s just that the ‘time on their hands’ requirement is the hardest to meet.
You should expect approx $3,000 for an experienced senior lawyer to prepare and lodge an application about a tree dispute in the L&E court. There will be cheaper and more expensive versions of that average. There may be some additional time that needs to be spent instructing an expert to prepare a report, if that has not been done yet – or instructing that expert to prepare their report in a form suitable for use in court. If so, costs could be more.
Bear in mind that that is just the cost to prepare and lodge. You haven’t yet got to the stage of prosecuting the application…a fully defended application that runs to a final hearing could be $15K at the lower end.
2. Yes, you should be given the option to mediate (but are not always forced to mediate). If mediation is not successful, then the court will set a timetable for each party to prepare, file and serve their evidence which usually consists of expert reports eg, from an arborist, an engineer perhaps if infrastructure is affected. A hearing date will be set. the court’s practice is to hold tree hearings on-site, so the commissioner determining the matter can see the offending tree for themselves, which is sensible.
3. See 1 above. Not necessary, but with today’s busy and already overburdened property owners, I’d say it’s common.
4. Costs in tree dispute matters are not awarded ‘as of right’. That means, even if you win the case, you don’t automatically get a cost order. You have to explain to the court why it would be reasonable for you to be awarded your costs. I do not have enough experience in tree disputes to be able to give any prediction here, but I’d suggest your owners corporation goes into this assuming that it will not recover the costs it expends. However, the application may be the only avenue available to your owners corporation to get your neighbour to pay attention to the issue and eventually agree to resolve it constructively. If that’s the case, the costs would be well spent.
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