Land and Environment Court New South Wales Medium Neutral Citation: Papadopoullos & anor v Yeomans [2015] NSWLEC 1110 Hearing dates: 22 April 2015 Date of orders: 22 April 2015 Decision date: 22 April 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld see [17] Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Ms G Papadopoullos and Mr A Zogratos (Applicants) Ms R Yeomans (Respondent) Representation: Counsel: Applicants: Ms G Papadopoulllos and Mr A Zografos (Litigants in person) Respondent: Ms R Yeomans (Litigant in person) Solicitors: File Number(s): 20081 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants own a rental property in Newtown. They have applied to the Court for orders seeking the complete pruning of an Avocado tree, repair of the dividing fence between the parties' properties, and reimbursement of the application filing fee. 2. The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 3. The respondent does not oppose the pruning of the canopy but sees no need to remove a healthy fruit tree that provides a range of benefits to both properties. In her opinion the fence is not damaged, the tree fills the gap and is part of the fence, and the tree is almost fully grown and will not cause any significant problems in the future. 4. The tree is thought to have grown from a seed discarded in a compost heap about 12 years or so ago. Its base originates on the respondent's property, very close to the boundary, but the majority of the trunk and crown extend over the applicants' property. 5. In late 2011 the parties agreed to replace the timber dividing fence. From the correspondence between the parties (included in the application and claim form), it appears that the fence was constructed in a way that incorporated the trunk into the fence. Emails from the first applicant to the respondent clearly state that the applicants did not want any gaps in the fence. An email dated 27 October 2011 states: I have just been advised by our property manager that there is a gap in the new fence with your avocado tree pushing through it. Please ensure that this is rectified as I have made it clear before that I will not accept any gaps in the fence. I will pay my half of the bill when this is rectified. 1. In applications made under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that the tree the subject of the application has caused, is causing, or could in the near future cause, damage to the applicant's property or is likely to cause injury to any person. Risk of injury is not pressed in this matter. 2. At the hearing I observed the tree to be a healthy specimen with a small crop of fruit. I also observed the bending of the bottom rail of the panel in which the tree is incorporated. It was also clear to me that since the fence was installed, the tree has increased in girth and is displacing other elements of the fence. 3. While the respondent contends that the tree is almost fully mature and is unlikely to get much larger, with the expertise in horticulture and arboriculture that I bring to the Court, I am satisfied that if left to grow it has the potential to be a much larger tree. 4. I am satisfied on the evidence that the tree is causing damage to the dividing fence which is partly the property of the applicants. Although the damage is very minor at this stage and the fence is functional, the natural and expected expansion of the tree, if left to grow as the respondent wishes, will cause more damage to the fence. In this situation, a fully contiguous fence and the avocado tree are mutually exclusive. 5. Therefore I am satisfied that the Court's jurisdiction under s 9 of the Act to consider what orders should be made, is engaged. 6. The applicants request substantial pruning; however given the growth habit and the low point at which it crosses into the applicants' property, nothing other than complete removal will solve the problem with the fence. 7. While I agree with the respondent that the tree provides some amenity to both properties by way of shading the rear courtyards, there are several other trees in both gardens that also provide shade. 8. In the circumstances, and in order to prevent more extensive (and potentially more expensive to rectify) damage, orders will be made to remove the tree. As is usual in these matters, the cost of doing so falls to the party on whose land the tree is located –that is, the respondent. 9. As the majority of the tree overhangs the applicants' property, orders will be made for the applicants to provide access for some or all of the work to be carried out from their property. 10. In regards to who should pay for the rectification of the fence, I note the applicants' position that the respondent should pay the full cost however, it is unclear from the correspondence and other material in the application claim form as to whether the applicants contributed to the cost of the fencing work in 2011. As this is a dividing fence, I think it reasonable that the applicants pay for 50% of the rectification. 11. With respect to the order sought for reimbursement of the application filing fee, Commissioners of the Court do not have the jurisdiction to award such costs. Should they wish to, the applicants could file a Notice of Motion and application for costs which would then be heard by a Registrar or Judge of the Court. 12. Therefore, as a consequence of the forgoing, the Orders of the Court are: 1. The application is upheld in part. 2. Within 90 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the avocado tree to ground level and to poison the stump. 3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The applicants are to provide reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work in (2). The applicants must provide the respondent with their contact details and or the contact details of their tenant. 5. In order to close the gap in the fence where the tree is located, within 14 days of the removal of the tree, the respondent is to engage and pay for a fencing contractor to fix new palings and or rails to that section of fence. 6. The applicants are to provide reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work in (5). The applicants must provide the respondent with their contact details and or the contact details of their tenant. 7. The applicants are to reimburse the respondent 50% of the cost of the fencing work in (5) within 21 days of the receipt of a tax invoice for the completed work. ________________________ Judy Fakes Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2015