Khachan v Nisevic [2017] NSWLEC 1093

Land and Environment Court New South Wales

Medium Neutral Citation: Khachan v Nisevic [2017] NSWLEC 1093 Hearing dates: 24 February 2017 Date of orders: 24 February 2017 Decision date: 24 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application granted see [19] Catchwords: TREES [NEIGHBOURS] Damage; potential injury; structural integrity of the tree; removal ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Geraldine Khachan (Applicant) Djuro Nisevic (Respondent) Representation: Applicant: Ms G Khachan (Litigant in person) Respondent: Mr D Nisevic (Litigant in person) File Number(s): 374701 of 2016

judgment 1. COMMISSIONER: The applicant owns a property in Croydon Park. In the rear garden of the adjoining property, close to the common side boundary, is a mature Liquidambar. While the base of the trunk is located wholly on the respondent's land, the majority of the severely pruned canopy overhangs the applicant's land. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree and poisoning of the roots. The orders are sought on the applicant's contention that the roots are causing damage to paving, the trunk has damaged the fence, and the roots could eventually cause damage to other nearby structures. In addition, given the extent of overhanging of the canopy over her property, the applicant is concerned about potential injury to anyone on her property should any part of the tree fail 3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 3. The applicant engaged Mr Zahir Dewji, Senior Structural Engineer, Inhouse Consulting Engineers P/L to inspect her property and prepare a report. Mr Sam Allouche, Arborist, NSW Tree Services P/L was also engaged. The reports are included in the Application Claim Form. Neither expert was present at the hearing. 4. Mr Dewji notes significant ground heave and damage to the ground in the immediate vicinity of the tree as well as damage to the colorbond fence as a consequence of the tree. He notes the significant overhang of the remaining canopy over the applicant's property. In Mr Dweji's opinion, the tree is potentially unstable and vulnerable to failure and should be removed. 5. Mr Allouche makes similar observations to Mr Dweji. He notes the excessive pruning that has been carried out and opines that this has resulted in a specimen with poor crown architecture that cannot be remedied or corrected. Mr Allouche opines that the branches are vulnerable to failure. Given the poor form of the canopy, the damage to the paving and the risk to tree stability of installing a root barrier in order to prevent ongoing/ future damage to the applicant's property, he recommends removal.