Tavares v Pikoulas & anor [2016] NSWLEC 1207

Land and Environment Court New South Wales

Medium Neutral Citation: Tavares v Pikoulas & anor [2016] NSWLEC 1207 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 2016 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld. Catchwords: Trees (Disputes Between Neighbours); injury; deadwood; pruning ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Belinda Tavares (Applicant) Mechel Pikoulas (First Respondent) Pantelis Athanasopoulos (Second Respondent) Representation: B Tavares, litigant in person (Applicant) M Moss, property manager (Respondents) File Number(s): 20046 of 2016

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a mature Corymbia maculata (Spotted Gum) located on the respondents' property at Padstow in Sydney. 2. The tree is located at the rear of the respondents' property close to the common boundary fence at the rear of the applicant's site. 3. The trunk of the tree leans towards the applicant's property as a result of being suppressed in the past by an adjacent tree that is no longer standing. The suppression has also resulted in an asymmetrical canopy with the majority of the foliage being located towards the applicant's property. 4. There is a pool on the applicant's property located under a portion of the tree canopy. A clear plastic domed canopy has been installed over the pool. 5. The applicant is seeking orders for significant pruning of the tree and for regular inspections and pruning to be undertaken by a qualified arborist. The applicant is concerned that falling branches will cause damage to property or injury to a person. 6. It is noted that the applicant is also seeking compensation for the arborist's report, the application to Bankstown Council and for the Court application fees. Commissioners and Acting Commissioners do not have the power to order the payment of legal costs, cost of expert reports and other expenses. Claims for these costs must be made by a Notice of Motion which will be heard and determined by a Judge or Registrar. 7. 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 the tree.