As a land owner, what do you do when you are bullied by a developer?—A case study by Guantao & CS Lawyers on nelghbourlng tree dlspute
Guantao Australian Law Series is prepared by its Sydney Office for the benefit of our existing clients in Australia and clients who are coming to Australia to start their businesses.
As a safe property investment market, Sydney has always been the top choice for local and foreign property investors with guaranteed higher return. According to published data, land owners generally can expect their land price doubled in a cycle of about 7 years. In Australia, the stable government and fair legal system give investors an extra protection and confidence. However, no one can guarantee that a developer always behaves, particularly when they are driven by greed.
Recently we acted on behalf of a client of us who is a land owner in a Sydney suburb. We put up a fight for this client against his bully next door developer. Finally this bully developer was forced to enter into a consent judgement in favour of our client. We summarise the key information of this case for your reference. We hope that it will help you if you are in similar situations.
The background of this matter
1. Our client is a land owner and his neighbouring lands were purchased by a well-known Chinese developer who entered into the Australian property development market in about 2016.
2. In late March or early April 2018, a letter was delivered to our client's premises with a request for our client's consent for the removal of a neighbouring tree.
3. On 9 April 2018 our client expressed their reluctance to the proposed tree removal and raised the following concerns:
(1) They were not aware of the claim that neighbouring tree was co-owned;
(2) As a matter of fact, the tree is within our client's boundary; and
(3) The tree canopy which was higher than the house provides very good privacy to our client's house.
4. Shortly after the developer, through their arborist, engaged in a series conversation with our client.
5. From 28 May to 4 June 2018 there were various communications between the Arborist and our client by emails, phone calls and text messages. In summary, the parties couldn't reach an agreement.
6. On Thursday 7 June 2018 when our client came home in the afternoon and realised that the subject tree was cut down during the day when our client was away.
7. Our client contacted the developer and the developer confirmed that the tree removal was organised by them.
8. On Saturday 9 June 2018, a group of tree service personnel attended the premises with intention of digging up the tree root. Our client refused their entry.
9. On 5 Sep 2018, a new Consent DA/XXX/2017 was approved by Sydney Central City Planning Panel for Demolition of XXX dwellings, tree removal and construction of 3 x 7 storey residential flat buildings containing 118 apartments and associated basement car parking, compared to previous DA there were 30 more apartment units under the new DA.
10. On 10 Sep 2018 our client wrote to the developer, asking for the issue to be resolved amicably.
11. On 27 September 2018 the developer's lawyers replied disputing our client's version of events.
12. On 24 October 2018, our client engaged a surveyor to identity the exact location of the subject tree with respect to the neighbouring lands.
13. In December 2018 a valuation report was undertaken by an expert engaged by our client.
The legal issues and potential claims by our clients
By cutting the subject tree without our clients' consent, a few issues arise accordingly:
1. The following principles apply to trespass to land and tree removal:
a). A tree belongs to the person on whose land it was planted (Masters v Collie (1620) 81 ER 712);
b). Even where branches or roots spread across the boundary onto adjoining land, they belong to the person on whose side the tree was planted (Holder v Coates (1827) 173 ER 1099; Carr v Sourlos (1994) 6 BPR 13,626);
c). However, if the tree was planted precisely on the boundary, and its branches and roots spread onto both parcels of land, it belongs to the adjoining landowners as tenants in common in equal shares (Percy v Le Heux [1982] ANZ ConvR 397);
d). To enter a neighbour's land without consent and cut down a tree is a trespass (Carr v Sourlos (1994) 6 BPR 13, 626);
e). A permission granted by Council such as a development consent or a tree removal permit is not a defence to trespass (Carr v Sourlos (1994) 6 BPR 13, 626); and
f). In the appropriate circumstances, exemplary damages may be awarded for the trespass (Carr v Sourlos (1994) 6BPR 13; Port Stephens Shire Council v Tellamist Pty Ltd (2004) 135 LGERA 98 (NSWCA)).
2. Events of 7 June 2018
Considering that the Tree is located 20cm inside the boundary of our client's land, it must be that the Tree was planted on our client's land, and therefore the Tree belonged to our client. The same inference was made in Carr v Sourlos (1994) 6 BPR 13,626. It is undoubtedly the case that the primary proprietary interest in the Tree belonged to our client considering its location.
In order to remove the Tree, contractors engaged by the developer would have necessarily been entered our client’s land, or the airspace of our client's land. It would not have been possible to remove the tree otherwise.
At no point was permission expressly granted or implied. The entering of land without permission and the removal of a tree constitutes trespass and the actions were inconsistent with our client's rights as tenants in common.
3. Damages
Relevance of Carr v Sourlos
In Carr v Sourlos, the plaintiff and defendants owned adjoining properties. The defendants obtained an order from the council permitting the removal of four trees growing along the boundary between the properties, subject to negotiations with the plaintiff. The defendants' solicitors sent a letter to the plaintiff advising him to remove the trees within 14 days, failing which the defendants would remove the trees themselves and seek contribution for costs. The letter was never received by the plaintiff. The defendants' agents entered the plaintiff's land to remove the trees. The plaintiff sought to recover damages for trespass.
The Court held that neither the defendants nor their agents had permission to enter onto the plaintiff's land. Therefore, the defendants by their agents committed the tort of trespass on the plaintiff's land.
Importantly, the Court held that the plaintiff was entitled to:
· compensatory damages for diminution of the aesthetic appeal and market value of his property;
· aggravated damages for the violation of his property; and
· exemplary damages.
Considering the similarities with the factual circumstances in Carr v Sourlos, we are not aware of any reason in law or fact why these same heads of damages would not be available if proceedings were commenced in this matter.
It is also noteworthy that in Carr v Sourlos, the Court found that the issues involved were of far greater significance than the quantum of damages indicated and ultimately the Court made a special order for costs of $100,000.00.
4. Breach of the Environmental Planning and Assessment Act 1979 (EP&A Act)
In the developer's lawyers reply they argued that when removing the tree, their client was acting 'pursuant to a previous development consent XXX/2014/JP.'
As noted above, a planning permission such as adevelopment consent does not provide a defence to trespass. Where development consent is granted, the development consent does not constitute a property right to permit trespass, even if landowner's consent to the making of the DAwas granted (Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52; Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205.
Trespass aside, it is necessary to determine whether the removal of the tree was carried out in accordance with development consent XXX/2014/JP.
It is noteworthy that DA XXX/2014/JP has a number of conditions that must be complied with prior to the carrying out of anyworks.
It is a fundamental principle of planning law that work undertaken in breach of a condition of the consent is prohibited and illegal and cannot be work relating to the development (the subject of the consent). Such work (in breach of conditions of consent) cannot be relied upon to physically commence a consent. Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132.
In this case, DA XXX/2014/JP was granted in 2014 and approved works including the removal of the tree. However, there is no evidence that would suggest that DA XXX/2014/JP was lawfully physically commenced in accordance with section 4.53 of the EP&A Act.
In particular, the conditions at 42 – 63 are conditions that must be complied with prior to the carrying out of any works. As a matter of fact these preconditions were not satisfied.
It follows that DA XXX/2014/JP was never commenced because the Consent does not appear to have been relied upon, and in any event, the removal of the Tree was in breach of conditions 42 – 63 of the consent. Accordingly, for the purposes of the EP&A Act, the works were prohibited and illegal.
The final outcome of the matter
We engaged settlement negotiations with this developer on behalf of our client. Unfortunately this developer, by disregarding their corporate social responsibilities, tried very hard to avoid paying reasonable amount of damages while had to admitting their responsibilities.
In April 2019, our client had no choice but commencing proceedings in the Supreme Court against this developer. Shortly after the proceedings were commenced, the developer made a formal offer to our client. We were of the view that the offer amount plus our costs offered by the developer was reasonable in the circumstances. By following our recommendation, our client accepted the offer and the matter was settled by consent judgment between the parties without going any further.
Lessons learnt from this case
The real property market is always active in Australia, especially in Sydney even though there are cycles of ups and downs. As a land owner when you face a big developer, how to protect your interest? Lessons from this case:
1. To know your position by seeking legal advice as early as possible.
2. To follow the advice from your lawyers and act accordingly.
3. Be confident when you face a big opponent.
As part of Guantao Law firm, Guantao & CS Lawyers act for both sides of property transactions in the Australian market. Our clients include developers, builders, financiers and property purchasers. If you have any needs in the area of property law including planning, feel free to contact us.
