Land and Environment Court New South Wales Medium Neutral Citation: Lakiss v Piangas [2020] NSWLEC 1405 Hearing dates: 2 June 2020 Date of orders: 1 September 2020 Decision date: 01 September 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) Within 30 days of the date of these orders, the respondents are to engage a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove to ground level all cypress trees (six or as otherwise found to be present) in the row adjacent to their western boundary. These works must be carried out in accordance with the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work. (2) The respondents are to give the applicant at least two days' notice of the works. (3) The applicant is to provide all reasonable access required for completing the tree removal works during reasonable hours of the day. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to driveway and fence – whether the damage is caused by neighbouring trees – whether the trees should be removed – whether damage requires repairs – whether the tree owner should pay for repairs Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Texts Cited: Bankstown Development Control Plan 2015 Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work Category: Principal judgment Parties: Peter Lakiss (Applicant) George Piangas (First Respondent) Angelo Piangas (Second Respondent) Konnie Piangas (Third Respondent) Representation: M Lakiss (Agent) (Applicant) No appearance (Respondents) File Number(s): 2019/348686 Publication restriction: No Judgment Background to the application 1. A narrow row of Mediterranean Cypress trees ('the trees') stands on the Earlwood property belonging to George, Konnie and Angelo Piangas ('the respondents'), alongside the common boundary shared with their neighbour, Peter Lakiss ('the applicant'). A fence along the boundary separates the trees from the adjacent driveway on Mr Lakiss' property. 2. Mr Lakiss complained to the respondents some years ago that the trees were lifting his driveway. Mr Lakiss applied to Canterbury Bankstown Council ('Council') for consent to remove three cypress trees, as he thought the row contained only three trees. Angelo Piangas signed the form where required to indicate the property owner's consent to the application. In September 2018 Council granted consent to remove three trees. When pressed to remove the trees, Mr Piangas refused to remove the row of trees on the basis that there were six trees in the row and he had permission to remove only three. Armed with this information, Mr Lakiss again applied to Council, this time to remove six trees. Again, Mr Piangas signed the form, providing the tree owners' consent for the application. Council refused the second application. 3. Mr Lakiss then applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours Act) 2006 (NSW) ('the Trees Act') seeking orders for the row of trees to be removed and for repairs to his property. The hearing 1. With COVID-19 restrictions preventing onsite hearings at the time, the final hearing proceeded via telephone. Mr Lakiss had filed photographs and other material prior to the hearing, such that I was of the opinion that neither the hearing nor this decision would suffer from the lack of an onsite view. The hearing took place on 2 June 2020. Mr Lakiss' cousin, Michael Lakiss, acted as his agent at the hearing. The respondents did not attend the hearing. Mr Piangas had written to the Court earlier, explaining that he had no issue with removing the trees if authorised to do so. He also wrote that he would not attend the hearing. Trees have damaged the applicant's property 1. The trees grow in a row along the rear boundary of the respondents' corner property. They are adjacent to the applicant's front setback and garage, along his side boundary. His garage adjoins his dwelling. The applicants' photographs show that the trees grow against the boundary fence. 2. Mr Lakiss claims that the trees have damaged several parts of his property. His front fence pillar is displaced, so that a gap has opened up between that pillar and the corner pillar of the Piangas' fence. As a result of the pillar's movement, Mr Lakiss' driveway gate no longer closes properly. His stencilled concrete driveway has been lifted by up to 7 cm near his garage. His boundary fence is warped and the side gate alongside his garage no longer closes. Roof gutters on the garage are being damaged by branches. 3. Mr Lakiss' photographs show clearly the displacement of his front fence pillar and the gate to his driveway. They show clearly that the driveway surface is now raised higher than the adjacent garage slab's surface, creating a small step between the two. They show minor cracking in a concrete path between the garage and the boundary fence, and displacement of the side gate alongside the garage. In Mr Lakiss' photographs, no other likely causes for the damage can be seen. 4. These tall, mature cypress trees require woody structural roots for their stability. They appear to be planted less than half a metre from Mr Lakiss' driveway. I am satisfied that their roots have lifted the driveway. I am also satisfied that root growth has displaced the fence and Mr Lakiss' front pillar. On this basis, according to s 10(2)(a) of the Trees Act, I can make orders for those trees that have caused the damage. From the evidence before me, I cannot be sure if all of the trees have caused damage and, if not all trees have caused damage, I cannot identify which trees have caused damage. The test at s 10(2)(a) must be satisfied for each tree before orders can be made for that tree. All trees in the row are likely to cause damage 1. If investigations were carried out, identifying that only some of the trees in the row have caused damage, and those trees were removed, I find that the remaining trees would be likely to cause further lifting of Mr Lakiss' driveway in the near future. As per the principle established in Yang v Scerri [2007] NSWLEC 592 at [14], I consider the 'near future' to be a period of 12 months. Each of these trees is supported by roots that must, to some extent, extend beneath the driveway or concrete path. As they continue to grow in girth, they will lift the driveway or path further. Therefore, the jurisdictional test at s 10(2)(a) is satisfied for all trees in the row. The trees must be removed 1. I have considered all the matters at s 12 of the Trees Act. The trees contribute to the landscape character and value of the respondents' property. They stand sentinel-like along this boundary, while similar plantings define parts of other boundaries on their property. They are close to the street and contribute to public amenity. Their foliage provides a screen from fence height, so they contribute to privacy. They provide some shade and cooling, although somewhat limited by their upright habit. They do not contribute any other significant environmental or ecological values. 2. According to Part B11 of the Bankstown Development Control Plan 2015 ('the 2015 DCP'), a permit is required to remove trees taller than 5 metres, as these trees are. However at clause 2.4 of the 2015 DCP, consent is not required for trees within 3 metres of an approved dwelling's external wall. The trees appear to be within 3 metres of the applicant's garage wall. 3. The trees have been planted very close to the common boundary. Hindsight suggests a greater setback at planting would have been prudent. Their proximity to Mr Lakiss' driveway has two consequences. Firstly, as I found above, the trees are likely to cause further damage in the near future. Secondly, even if a root barrier was otherwise suitable it could not be used here – installing a root barrier so close to these trees would sever structural roots, leaving the trees at risk of falling. Despite their value to the respondents' garden and property, the trees must be removed. Costs of repairs 1. At the hearing, Mr Lakiss stated that he will carry out or pay for any necessary repairs to the fence, his boundary pillar, and his gates. He wants the respondents to pay for repairs to his driveway, which was constructed some 15 years ago. Mr Lakiss obtained a quote of $6,800 from PowerLine Concrete Constructions to remove the existing driveway and replace it with a similar stencilled concrete driveway. Mr Lakiss stated that he might wish to sell his property. He did not want its value affected by the driveway's condition. 2. Relying on the applicant's photographs, I find that the cost for replacing the driveway is disproportionate to the extent of damage. Although the driveway has been raised several centimetres where it meets the garage, it otherwise appears to be in good condition for its age. It should not require replacement. The trip hazard created at the interface of the driveway and garage slabs could be remedied by grinding. I lean towards leaving the cost of this, or more extensive works should he choose, to Mr Lakiss. Although Mr Lakiss informed the respondents of the damage several years ago, and the damage is likely to have incrementally increased since then, it seems that the respondents had limited options for preventing further damage. They were clearly less than helpful when signing Mr Lakiss' initial application for Council's consent to remove only three trees, but once Council refused the second application for consent to remove all the trees, they had no practical means to prevent damage. For this reason, the respondents will not be ordered to pay any repair costs. They will bear the cost of removing the trees. Orders 1. For the reasons given above, the Court orders that: 1. Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove to ground level all cypress trees (six or as otherwise found to be present) in the row adjacent to their western boundary. These works must be carried out in accordance with the Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work. 2. The respondents are to give the applicant at least two days' notice of the works. 3. The applicant is to provide all reasonable access required for completing the tree removal works during reasonable hours of the day. ………………………………. D Galwey Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 September 2020