Manias v Paul [2011] NSWLEC 1048

Land and Environment Court New South Wales

Medium Neutral Citation: Manias v Paul [2011] NSWLEC 1048 Hearing dates: 3 March 2011 Decision date: 03 March 2011 Jurisdiction: Class 2 Before: Fakes C Decision: 1. Application to remove tree upheld. 2. Application for compensation upheld in part. Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; compensation; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Mr K Manias (Applicant) Ms H Paul (Respondent) Representation: Mr K Manias [litigant in person] (Applicant) Mr C Hunt [agent] (Respondent) File Number(s): 20847 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Leichhardt against the owner of a Liquidambar growing on an adjoining property. The respondent's property is tenanted and the managing agent, Mr C Hunt, represented the respondent. 2The applicant is seeking the removal of the tree on the basis that it has caused, and could continue to cause, damage to his property and that it poses a risk of injury, particularly to children. 3The applicant is also seeking compensation for the repair/ replacement of damaged structures, the Court filing fees and for the inspection of his property to determine if there are problems with the plumbing or structural integrity of his dwelling that may be associated with the tree. 4The tree is a mature Liquidambar growing in a raised garden bed and adjacent to the dividing fence on the northern side boundary at the rear of the respondent's property. The tree is healthy with a minor inclusion between the two main leaders. 5The diameter at breast height is about 70 cm. The majority of the trunk is clear of the fence however the root buttresses and base of the trunk are growing against the concrete strip at the base of the fence and the outer edge of the retained garden bed in which it is growing. The roots have displaced these adjoining sections of concrete strip and garden bed. The garden bed is 3 courses of bricks high (above a concrete path), about 1 m wide and several metres long. 6In 2009, at the request of the applicant, Council-approved pruning of the lower branches overhanging both properties was carried out.