Alshadaida v Elasmar [2015] NSWLEC 1236

Land and Environment Court New South Wales

Medium Neutral Citation: Alshadaida v Elasmar [2015] NSWLEC 1236 Hearing dates: 26 June 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 16. Catchwords: Trees (Disputes Between Neighbours); damage; repairs ordered; apportionment of costs of works. Legislation Cited: Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Mona Alshadaida (Applicant) Doreen Elasmar (Respondent) Representation: Counsel: Mona Alshadaida, litigant in person (Applicant) Doreen Elasmar, litigant in person (Respondent)

Solicitors: File Number(s): 20179 of 2015

Judgment

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

Background 1. Mr and Mrs Elasmar live at a Merrylands property, which Mrs Elasmar ('the respondent') has owned since 2006. In their back yard, near their rear boundary fence, a mature Jacaranda tree grows. The tree is within 2 metres of the neighbouring dwelling, owned by Ms Alshadaida ('the applicant') since 2000. The common boundary is her side boundary and the Jacaranda is close to the front corner of her double storey brick dwelling. A concrete path runs along the side of her dwelling parallel to the boundary fence. 2. Ms Alshadaida has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the Jacaranda's removal, or alternatively the installation of a root barrier and pruning of the crown, and for the costs of repairing the concrete path and stormwater pipes, for the following reasons. 1. The tree shades her solar hot water panels, preventing water being heated. Apart from any inconvenience this may cause, Ms Alshadaida says this can also give rise to a risk of Legionnaire's disease. 2. The tree limits the efficiency of her solar electricity panels. 3. Leaves and twigs from the tree block drainage from her roof and guttering, which has led to water damage internally. 4. Tree roots have lifted the concrete path alongside her dwelling. 5. Tree roots have displaced concrete edging along a garden bed at the front of her dwelling. 6. Tree roots have caused cracking of external brickwork of her dwelling. 7. Tree roots or leaves may have blocked her stormwater pipes, as water is not draining to the street. 8. Roots have displaced the boundary fence. 9. If the tree is not removed these problems will continue and become greater in future as the tree grows. 1. Mrs Elasmar says the tree was there when she bought the property, as it was when Ms Alshadaida bought hers. The Elasmars value the tree as it is the only large tree in their garden and it gives them shade in summer. They do not want it removed. Ms Alshadaida first expressed her concerns to them in 2012 soon after becoming aware of the issues. 2. Ms Alshadaida has provided quotes for repair works along with an engineer's report that identifies tree roots as a factor likely to be contributing to lifting of the path and cracking of the dwelling's external brick wall, but certainly not its only cause. Reactive clay soils and seasonal soil moisture changes are also identified as contributing factors.