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.
2018年9月5日，悉尼中央城市规划组通过了一项新的开发许可DA/XXX/2017，同意拆除XXX住房，树木移除和一栋3 x 7层住宅楼的建造（包括118间公寓和附属的地下停车场）。与之前的开发许可相比，新的开发许可新增了30间公寓。
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);
树木栽种在谁的土地上，谁就是该树的所有者(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);
即使树枝或者树根延伸到毗连土地上，它们仍属于树木栽种的那片土地的所有者(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  ANZ ConvR 397);
然而，如果树木栽种的地方刚好是边界线，而且树枝和树根延伸到双方的土地上，那么毗连土地所有者将作为拥有同等份额的按份共有人共同拥有这棵树(Percy v Le Heux 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);
未经许可进入邻居的土地并砍掉树木是一种非法侵入行为(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
市议会的许可，比如开发许可或者树木移除许可，不能作为非法侵入的理由(Carr v Sourlos (1994) 6 BPR 13, 626); 以及
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)).
在合适的情况下，法庭可以因非法侵入行为而判决惩罚性损害赔偿(Carr v Sourlos (1994) 6 BPR 13; PortStephens 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.
因为该树位于我们的客户所有的土地界限以内20厘米，所以该树栽种于我们的客户的土地上，因此属于我们的客户。在Carr v Sourlos (1994) 6BPR 13,626一案中也有类似的推论。考虑到该树的位置，毫无疑问，该树的主要财产性权益属于我们的客户。
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.
Relevance of Carr v Sourlos
Carr v Sourlos 一案的相关性
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.
在Carr v Sourlos一案中，原告和被告所拥有的土地相邻。被告从市议会获得许可，在与原告进行协商的前提下，可以移除沿着两块土地边界生长的四棵树木。被告律师在寄给原告的信件中表示，原告应在14天内移除这些树木，如果未能移除，被告将负责移除这些树木并向原告要求成本费用补偿。原告并没有收到这封信。被告的代理人进入原告的土地移除了这些树木。原告要求对非法侵入行为进行损害赔偿。
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.
鉴于本案例与Carr v Sourlos一案事实上的相似性，我们认为，如果进入诉讼，没有事实上或法律上的任何理由使得我们的客户不能获得相似种类的损害赔偿。
It is also noteworthy that in Carr v Sourlos, the Court found that the issues involved were of far greater signi?cance 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.
如上述，开发许可等规划许可不能作为非法侵入的理由。即使土地所有者同意开发许可的制定，开发许可也不能作为一种财产性权利允许非法侵入行为(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.
在规划法律中有一项重要原则，即任何没有遵守许可中列出的条件的作业都是被禁止的、违法的，不能被认为是与开发相关的（开发是许可的主体）。这种（没有遵守许可中列出的条件的）作业不能认为是被给予许可的。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.