Kanagias v Mahajan & ors [2014] NSWLEC 1020

Land and Environment Court New South Wales

Medium Neutral Citation: Kanagias v Mahajan & ors [2014] NSWLEC 1020 Hearing dates: 12 February 2014 Decision date: 12 February 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; maintenance; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson and anor [2009] NSWLEC 1148 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: APPLICANT Ken Kanagias

RESPONDENTS Shirish Mahajan (First Respondent) Maya Mahajan (Second Respondent) Vikrant Mahajan (Third Respondent) File Number(s): 20891 of 2013

Judgment

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

The applicant wants neighbouring trees removed and pruned 1Mr Kanagias has lived at his Penshurst property for over 30 years. A driveway running alongside his property provides access to four properties, each of which owns a quarter of the driveway with a Right of Way agreement to share the driveway. Two rows of Italian Cypress trees line the driveway, one either side. Mr Kanagias claims that the row of trees along his boundary is causing damage to his property. The strip of land on which those trees grow is part of the property owned by the three respondents, the Mahajans. 2Mr Kanagias has made an application under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for most of the trees - those between his garage and the street - to be removed and the remainder of the trees to the rear of his garage to be pruned to fence height. 3Mr Kanagias says the trees' roots are damaging his paved driveway, causing cracks in the mortar. He says they have caused displacement of the colourbond fence on the common boundary. He says sap falls from the overhanging branches onto his driveway, which it stains, and prevents him parking cars there, as they would be damaged. 4Mr Kanagias says debris from the trees, including foliage and seed cones, falls on the dwelling, garage and carport roofs, blocking gutters and downpipes and thereby causing damage. He says that debris also blocks the drain at the front of his garage. He says the maintenance required to clean these structures is more than should be expected. 5Mr Kanagias is also concerned that, with electricity wires running through the canopies of trees on the other side of the driveway, all of the trees present a fire hazard as they are highly flammable. 6Mr Kanagias says the trees have caused damage and, if nothing is done, are likely to cause more damage in future.