Panganis v NSW Department of Housing [2024] NSWLEC 1848

Land and Environment Court New South Wales

Medium Neutral Citation: Panganis v NSW Department of Housing [2024] NSWLEC 1848 Hearing dates: 23 July 2024 Date of orders: 23 July 2024 Decision date: 23 July 2024 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is refused. Catchwords: TREES ([(DISPUTES BETWEEN NEIGHBOURS)NEIGHBOURS)]: – likely dwelling damage and risk of injury claimed – removal required as condition of dwelling construction contract Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12 Uniform Civil Procedures Act 2005 Inner West Local Environment Plan 2022 Cases Cited: McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Elizabeth Panganis (Applicant) NSW Department of Housing (Respondent) Representation: Counsel: E Panganis (Self-represented) (Applicant) C Fryer (Solicitor) (Respondent)

Solicitors: DCJ Legal (Respondent) File Number(s): 2024/173408 Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. COMMISSIONER: This is an application under s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) by Elizabeth Panganis of Balmain (the applicant), who proposed the Court make orders for the removal of two trees growing in an adjoining multi-dwelling property, owned by the NSW Department of Housing (Housing) (the respondent). The properties share a side boundary but are accessed from different streets. 2. Two mid-sized Eucalyptus scoparia (Wallangarra White Gum) (the trees) were growing in a confined space close to the common boundary behind dwellings on the respondent's land. To access sunlight from the west, the trees (T1 and T2) had grown long low branches over the applicant's single story timber cottage. In 2019, a third Eucalyptus scoparia (T3), growing over the applicant's cottage from the respondent's land, had collapsed onto the roof of the applicant's dwelling. The tree was removed by a crane. After an investigation, repair costs were recovered by the applicant's insurer and no excess was imposed on Ms Panganis as the respondent (at that time called NSW Land and Housing Corporation) was found responsible for the damage. A tenant had previously warned Housing that T3 was unsafe as its roots were lifting, but the tree was subsequently assessed by Housing as only requiring some branches pruned rather than removal. 3. By 2022, Ms Panganis was preparing to lodge a DA for the demolition of her dwelling and construction of a new two-storey dwelling and needed branches removed from T1 and T2 to provide clearance for her building works. Inner West Council (Council) required a letter from Housing providing written permission for the pruning. In May 2022, Ms Panganis contacted Mr Paul Day, a Project Officer from Housing, seeking permission for pruning of branches overhanging her property from T1 and T2. Mr Day's reply noted a requirement for a "licenced arborist report" from Ms Panganis, which detailed the location of the trees on a site map, the size, length, and location of the branches on the trees, and whether removal of these branches would increase future risk for Housing, and their tenants. 4. After difficulty finding a suitable arborist, Ms Panganis sent Mr Day an arborist report from Mr Hayden Coulter of The Ents Tree Consultancy in October 2022. At question 32 of the Tree Dispute Claim Details (Form H), regarding efforts to reach agreement with the respondent, Ms Panganis contended that she had still received "no approval (from Housing) after numerous phones and emails". Copies of emails in the applicant's Annexure A of 10 May 2024 only covered May 2022 to August 2022, however. 5. At question 31 of Form H, addressing "other matters considered relevant in the circumstances of the case", Ms Panganis noted suffering a fire in October 2022 that left her "with a shell of a house with no bathroom, kitchen, laundry and no electrical wiring and the roof is beginning to cave in". The applicant said she moved to temporary accommodation until August 2024 and claimed, "[a] builder will not build unless the gum trees are removed due to the damage to the house they will cause".