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. The applicant's submissions 1. Mr Papas says that both the tree and his shed were present when he bought his property. He says he noticed that the tree was leaning against the shed and discussed this issue with the respondents in 2002, saying he raised the tree's overhang and the damage it was causing and asked for the tree to be removed. He says the respondents have taken no action since then. 2. Although the existing shed is perhaps closer to his rear boundary than current council regulations would allow, Mr Papas says he would now be able to construct the replacement shed here 450 mm from the boundary to a height of 2.7 metres. But he says the stem of the Jacaranda would prevent this. He says the existing shed could be retained and used if it had not been damaged by the tree. The respondents' submissions 1. Mr and Mrs Panagiotopoulos say they appreciate the amenity provided by the tree. They say it provides shade to their property and environmental benefits beyond their property, and that there are too few trees left in the neighbourhood. They say they were not made aware of any damage in 2002, only that the tree was growing over Mr Papas' property. They say the shed is old and past its use-by date. They contend that its dilapidated condition is due to its age and poor construction, not the tree. They pointed out parts of the shed in poor condition where it was not affected by the tree. They pointed to the dilapidated condition of the back of the adjacent shed, unaffected by the tree. 2. In getting a quote to replace the shed Mr Papas discovered it includes asbestos. Mr and Mrs Panagiotopoulos say it therefore needs to be replaced anyway. They submit that if Mr Papas wants to replace the shed he should do so without removing the tree, and that the shed could be constructed clear of the tree's stem. They say Mr Papas only raised the issue after being presented with a quote to share replacement costs for the fence on the common boundary. Mr Papas says the tree would obstruct a new fence, but the respondents say the tree could be accommodated when a new fence is constructed. My findings The tree 1. The Jacaranda is perhaps 9 metres tall and has a broadly spreading canopy that provides amenity and shade. Although it is at the rear of the property it can be seen from the street and is attractive in flower. It would be a loss to the respondents and to the surrounding properties if it was removed. 2. However, the tree has two stems from ground level, and at their base these stems are joined by a narrow fork. The northern stem, the larger of the two, is resting on Mr Papas' shed. Distortion of the stem where it is against the shed demonstrates that it has rested here for some time and has naturally developed some reliance on support provided by the shed. Removal of the shed, which is proposed by Mr Papas and is a reasonable action, will remove the support. In my view, and applying my own arboricultural experience, the relatively weak union at the base of the tree would be prone to fail with the increased load it would experience following removal of the shed. There is no reasonable action that would sufficiently reduce this risk. Failure of the northern stem would fall into the Papas property, likely causing damage or perhaps injury. Therefore it is my opinion that the risk of stem failure following removal of the shed is significant enough to warrant removal of that stem. Unfortunately the southern stem would then have an increased risk of failing into the grassed area of the respondents' property, where it may result in injury. Consequently, and despite the benefits provided by the tree, I must order that the tree be removed. I will order replanting to compensate partly for the loss of amenity. 3. The current structural condition of the shed is so poor that, even if it is not removed, there is considerable risk that it will not be able to maintain the support it provides the tree, in which case both the shed and the tree may collapse into the Papas property. The shed 1. Although I accept that the tree has contributed to damage of the shed, having viewed the shed in its entirety and the back of the adjacent shed I find the tree's contribution to be relatively minor. I have asked myself, what condition would the shed be in if the tree had not been leaning on it? It appears to me that it would still be in poor condition and may still require major works for its repair, if not requiring complete replacement. It would certainly be unreasonable for the respondents to compensate Mr Papas for a new shed to replace the old. Furthermore, as pointed out by Mr and Mrs Panagiotopoulos, Mr Papas and other neighbours have benefited from the tree's presence. The respondents must already pay for the tree's removal. I will not further burden them with compensation for replacing an old shed that has, as they say, reached its use-by date. Other matters 1. In the application and other material filed, Mr Panagiotopoulos was listed as the only respondent. As both he and his wife own their property, Mrs Panagiotopoulos has been joined as a party to the proceedings. Orders 1. As a result of the foregoing, the orders of the Court are: 1. The application is upheld. 2. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the tree to no more than 60 cm above ground level. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 3. Given reasonable notice the applicant is to allow access required for the works during reasonable hours of the day. 4. Within 90 days of the date of these orders the respondents are to plant a new Jacaranda tree in their rear garden, at least one metre from any boundary. ____________________________ D Galwey Acting Commissioner of the Court 20663 of 2015 Galwey (O) (10.8 KB, pdf) ********** 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: 30 October 2015