Bowden v Sverkidis & anor [2015] NSWLEC 1410

Land and Environment Court New South Wales

Medium Neutral Citation: Bowden v Sverkidis & anor [2015] NSWLEC 1410 Hearing dates: 25 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed. Catchwords: Trees (Disputes Between Neighbours); jurisdictional tests; damage; trees on boundary; reimbursement of remediation costs; application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: S Bowden (Applicant) A Sverkidis (First Respondent) J Sverkidis (Second Respondent) Representation: S Bowden, litigant in person (Applicant)

Solicitors: K Morris, Macedone Legal (Solicitor for the Respondent) File Number(s): 20529 of 2015

Judgment

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

Background 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees located on the respondent's property at Blakehurst. 2. The trees are identified as Trees 1, 2 and 3 on the application and are located close to the common side boundary with the applicant's property. 3. There are two single skin brick walls, located approximately 20mm apart, that run along the length of the common side boundary between the applicant's and respondent's properties. It appears that the walls are separate structures and that one is located on the respondent's property and one on the applicant's property. 4. The respondent's property is higher than the applicant's property for much of the length of the common boundary and the wall on the respondent's property may serve as a retaining wall along the lower portion. The depth of the wall below the existing ground level on the respondent's property is not known. 5. The applicant is seeking the following orders – * The removal of Tree 1 (x Cupressocyparis leylandii – Leyland Cypress), Tree 2 (Murraya paniculata - Orange Jessamine) and Tree 3 (x Cupressocyparis leylandii – Leyland Cypress). * That the respondent engage a qualified Arborist to remove the three trees and pay all associated costs. * That the respondent pays for a professional builder to repair the damaged masonry boundary wall, gate arch, brick pier and stormwater line. 1. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees. 1. The applicant contends that roots from the trees are the cause of cracking in the brick wall that forms the side boundary fence on her property. Additionally Mrs Bowden contends that the brick work across the top of the side gate and the brick pier adjacent to the side gate on her property has moved and cracked due to the tree roots. The applicant also contends that the movement in the brick pier has caused the cracking of the downpipe located within that structure subsequently causing dampness at the base. 2. An estimate from A & D J Building Services in relation to the remediation of the boundary wall, gate arch, gate pier and stormwater line for the amount of $26,500 has been included in the application. This estimate does not include the removal of the three trees.