The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509

Land and Environment Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509 Hearing dates: 11 May 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [38] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – bamboo – madeira vine – whether the entire fence needs replacing – whether bamboo needs removing to prevent further damage – removal of madeira vine and bamboo – replacement of boundary fence Legislation Cited: Dividing Fences Act 1991, s 13A Noxious Weeds Act 1993 Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12 Trees (Disputes Between Neighbours) Regulation 2019, cl 4 Texts Cited: Parramatta City Council, 'Weed Control Class 4 Management Plan', (2006) Safe Work Australia, 'Guide to managing risks of tree trimming and removal work', (2016) Category: Principal judgment Parties: The Owners – Strata Plan 46498 (Applicant) Kalliopi Evagelakos (Respondent) Representation: Counsel T Bacon (Solicitor) (Applicant) T Kallianiotis (Solicitor) (Respondent)

Solicitors Strata Title Lawyers (Applicant) A Plus Legal (Respondent) File Number(s): 2020/361816 Publication restriction: No

Judgment

Background to the application 1. COMMISSIONER: A wooden paling fence extends along the common boundary shared by The Owners – Strata Plan 46498 ('the applicant') and Kalliopi Evagelakos ('the respondent'). The fence is serviceable in places, but not in others, where it is affected by age, weather, moisture and vegetation. The fence extends along the entirety of Ms Evagelakos' boundary. The fence extends along some, but not all, of the applicant's north-eastern boundary, where it forms the rear boundary of several units, enclosing their courtyard gardens. Some of these gardens are relatively clear of vegetation, some have trees and shrubs. For a significant length of this fence, Ms Evagelakos has tall rhizomatous (spreading) bamboo (Phyllostachys sp.) (the bamboo') growing on her side of the fence. It was growing here when she purchased her property, and she appreciates the privacy it provides. It forms a tall screen between her garden and the units on the applicant's property. 2. Madeira vine (Anredera cordifolia) ('the madeira vine') has grown on and amongst other vegetation, including Ms Evagelakos' bamboo. Some of the vine has been killed – dead foliage remains visible in the bamboo and in other trees and shrubs – while some live madeira vine remains. 3. The applicant has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for: the respondent to remove at her expense the bamboo and madeira vine; the respondent to instal a root barrier along the boundary to prevent further damage; the fence to be replaced along the entirety of the common boundary, with costs shared evenly by the parties; and, costs. 4. The applicant seeks these orders on the basis that the bamboo and madeira vine have damaged parts of the fence. The applicant is of the view that the vine has grown from the respondent's property. Parts of the fence that are not damaged by the bamboo are otherwise dilapidated, or do not meet the requirements of a proper dividing fence. To the applicant, it would be prudent to replace the fence in its entirety. 5. Some of the grounds for the application are not disputed by the respondent. For instance, the Ms Evagelakos does not dispute that her bamboo has damaged parts of the fence, nor that other parts of the fence are dilapidated. The respondent does not dispute that the madeira vine must be removed. The respondent does dispute, however, that the bamboo must be removed. Initially, the respondent also disputed that the fence needs replacing along the entire boundary. She had a quote for replacing sections of the fence, repairing other sections, and keeping some sections as they are. Her position changed during the hearing as she became more aware of the fence's condition, and of its failure to comply with current fence height requirements, so that she ultimately agreed that the entire boundary fence should be replaced. However Ms Evagelakos wanted an opportunity to obtain quotes for this work, whereas the applicant asked the Court to rely on the quote included in the application, which had been sent to the respondent along with an earlier notice under the Dividing Fences Act 1991 ('the Dividing Fences Act').