Papas v Panagiotopoulos & anor [2015] NSWLEC 1440

Land and Environment Court New South Wales

Medium Neutral Citation: Papas v Panagiotopoulos & anor [2015] NSWLEC 1440 Hearing dates: 30 October 2015 Date of orders: 30 October 2015 Decision date: 30 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 14. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a shed; orders for tree removal; tree not primary cause of the condition of the shed; compensation not ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Nicholas Papas (Applicant) Denis Panagiotopoulos (First Respondent) Dora Panagiotopoulos (Second Respondent) Representation: Constantine Papas, agent (Applicant) Denis Panagiotopoulos, litigant in person (First Respondent) Dora Panagiotopoulos, litigant in person (Second Respondent) File Number(s): 20663 of 2015

Judgment

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

Background 1. This matter involving a Jacaranda tree in Earlwood has come to Court in late October. If the tree was able to present its own arguments, its flowers are now at their most persuasive. 2. Mr Papas ('the applicant') has lived at his property since 1987, at which time two sheds already stood along his rear boundary. On the other side of that boundary two Jacaranda trees stand in the rear garden of Mr and Mrs Panagiotopoulos ('the respondents'), close to the common boundary. The westernmost tree ('the tree') has two stems, one of which leans to the north over Mr Papas' property, resting against one of his sheds. 3. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') Mr Papas has applied to the Land and Environment Court seeking orders for the respondents to remove the tree and to pay the costs of removing his shed and replacing it with a new shed. He says the tree has damaged the shed beyond repair. 4. The framework of the Trees Act is relatively straightforward. Before I can make any orders I must be satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or injury to a person. If so satisfied I can then make orders to remedy, restrain or prevent such damage or to prevent injury. Apart from actions for the tree, compensation for damage can be ordered. The quantum of such compensation, or its apportionment between the parties, will depend on matters that are listed in s 12 of the Trees Act. Other discretionary matters that I must consider and are listed at s 12 include the value of the tree and its contribution to the respondents' property and to the broader community and environment.