Lascaridis v Hamad [2014] NSWLEC 1173

Land and Environment Court New South Wales

Medium Neutral Citation: Lascaridis v Hamad [2014] NSWLEC 1173 Hearing dates: 20 August 2014 Decision date: 20 August 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part: see orders at paragraph 28 Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a dividing fence; whether a survey of the boundary is required; application upheld in part; orders for boundary survey; orders for tree removal, fence removal and fence construction. Legislation Cited: Civil Procedure Act 2005 Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Awad v Hardie [2010] NSWLEC 1213 Awad v Hardie (No 2) [2010] NSWLEC 1258 Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119 Category: Principal judgment Parties: C Lascaridis (Applicant)

M Hamad (Respondent) Representation: Simpson Freed Lawyers (Applicant) Fortis Law Group (Respondent)

Michael Corbett-Jones, solicitor (Applicant) Zak Tayyar, solicitor (Respondents) File Number(s): 20448 of 2014

Judgment

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

The application 1Mr Lascaridis (the applicant) has a residential property in Padstow with colourbond fencing along some boundaries, but along most of the length of his northern boundary is a somewhat dilapidated timber paling fence held up in places by additional supports. There are several trees, none particularly large, on the other side of the fence. This is the common boundary he shares with Ms Hamad (the respondent), who owns and resides at the property to his north. 2Mr Lascaridis first brought the fence's condition to Ms Hamad's attention in 2000. Again in 2013 he discussed the need for fence replacement with Ms Hamad, pointing out that some trees were pushing over the fence and would need to be removed to replace the fence. After some discussion and offers, they were unable to agree on a solution that would satisfy them both and Mr Lascaridis applied to Sutherland Local Court for orders pursuant to the Dividing Fences Act 1991 (the Fences Act). 3In June of this year Mr Lascaridis then filed an application with the Land and Environment Court (the Court) seeking orders pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for removal of trees causing damage to the dividing fence. In that application and in a subsequent Notice of Motion he also sought, pursuant to s 13A of the Fences Act, to have his fence application transferred from Sutherland Local Court to the Land and Environment Court, so it could be determined simultaneously with the tree application. The fence application was transferred to the Land and Environment Court on 7 August.