Milevski v Pajkovic [2022] NSWLEC 1492

Land and Environment Court New South Wales

Medium Neutral Citation: Milevski v Pajkovic [2022] NSWLEC 1492 Hearing dates: 31 May 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [39] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent's land - damage caused by fallen tree – compensation sought – risk of injury from falling palm fronds Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12 Environmental Planning and Assessment Act 1979 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia 'Guide to Managing Risks of Tree Trimming and Removal Work', 2016 Category: Principal judgment Parties: Nikolce Milevski (First Applicant) Blaga Dimova (Second Applicant) Robert Pajkovic (First Respondent) Livia Pajkovic (Second Respondent) Representation: N Milevski, self-represented (First Applicant) B Dimova, self-represented (Second Applicant) R Pajkovic, self-represented (First Respondent) L Pajkovic, self-represented (Second Respondent) File Number(s): 2022/98798 Publication restriction: Nil

JUDGMENT

COMMISSIONER:

Background 1. The applicants, Nikolce Milevski and Blaga Dimova, share a side boundary at their West Wollongong property with Robert and Livia Pajkovic, the respondents. The applicants occupy their residence while the respondents' property is leased to tenants. 2. On 15 January 2022, a mature Eucalyptus sp (Gum) (the tree) growing close to the common boundary in the respondents' front yard uprooted in conjunction with a strong storm and collapsed across the respondents' driveway with consequential damage to the boundary fence and a masonry wall within the property. Unsurprisingly, the applicants were shocked by this event, particularly because it occurred only minutes after Mr Milevski had removed his car from the driveway area that the tree subsequently impacted, so as to collect his young children from his parents' house. From photographs (photos), included with the application, the tree appeared to be about 15 metres (m) tall, with a sparse foliage cover and a fairly uniform trunk diameter, for at least the bottom 5m, of about 480mm. 3. Ms Dimova first approached Mr Pajkovic in November 2017 seeking the removal of the tree on the grounds that it was unhealthy, as displayed by "visible black sap, holes with ants and other insects" and deadwood constantly dropping on their driveway. Ms Dimova noted that Mr Pajkovic was dismissive because Mr Milevski "does not like trees", and suggested they park their cars in the garage or on the street, rather than on the driveway near the tree. 4. Mr Milevski next met with the respondents' son, Mr Karl Pajkovic in 2019 in relation to replacing the rear common boundary fence. Mr Milevski claims that a council worker pruning their street trees prior to this meeting had inspected the tree and advised that the tree had borer damage, and "it is just a matter of time to fall down". He said he advised Mr Karl Pajkovic accordingly and was given the impression that the Pajkovic's would thus apply to council for permission for tree removal. The applicants claim that they did not subsequently hear from the Pajkovic's at all until the tree collapse on 15 January 2022. 5. The applicants are also concerned about potential damage, and especially risk of injury to their young children as a result of fronds from two palm trees brushing their roof and gutters, and dead fronds falling onto their land. The trunks of the palms are in the respondents' rear yard, within 500mm of the common boundary. One palm is a Syagrus romanzoffiana (Cocos Palm) while the other is an Archontophoenix cunninghamiana (Bangalow Palm) (the palms). 6. As a consequence, Mr Milevski and Ms Dimova lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking compensation for damage that one tree has caused, to remedy damage they say is currently occurring as a result of the palms, to prevent damage that she believes is likely in the near future, and to mitigate risk of injury occurring as a result of the trees.