Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402

Land and Environment Court New South Wales

Medium Neutral Citation: Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402 Hearing dates: 20 July 2017 Date of orders: 01 August 2017 Decision date: 01 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [38] Catchwords: TREES [NEIGHBOURS] Damage to property; debris; potential injury; compensation; sufficiency of evidence; limited rectification ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Makarios & Gada Ebrahim (Applicants) Thomas & Hilary Vukovic (Respondents) Representation: Applicants: M Ebrahim (Litigant in person); Ms I Girgis (Agent) Respondents: Mr M Fozzard (Barrister)

Solicitor: Mr A Bilias File Number(s): 80041 of 2017

jUDGMENT 1. COMMISSIONER: The applicants own a property in Voyager Point in the Liverpool local government area. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for a range of orders to be paid for and undertaken by the owners of two trees growing in an adjoining property to the east and rear of the applicants' property. 2. The applicants contend that the two Golden Cypress trees have caused damage to the applicants' paving, pergola, barbecue and guttering. They are seeking orders for: the removal of the trees, including the removal of all roots and debris from their property; repair of cracked or damaged pergola panels; repair of damaged fence panels; repair of lifted paving; repair, cleaning or replacement of a barbecue and surrounding area; and repair or replacement of damaged tiles and brickwork around the barbecue area. 3. Apart from the damage they say the debris and roots have caused to their property, the applicants are concerned that given the size of the trees, a strong wind or storm may lead to branch failure and thus potentially to further damage and or injury. The applicants state that the lifted pavers are trip hazards. Further, they state in their application claim form that there is a rodent and insect problem exacerbated or caused by the trees as well as a mould problem; all issues that raise hygiene concerns. The applicants contend that the trees are restricting sunlight to their property and encouraging mould. 4. The applicants are seeking a sum of $10,823.00 which includes quotes or receipts for: removal of paving and roots and replacement of paving ($3000); out of pocket expenses for the replacement of a pergola and guttering damaged after a storm in 2011 ($2840); pest control and gardening services for the past two years ($2584); and replacement of the barbecue and surrounding structure ($2399). 5. The applicants rely on a 'Property Inspection Report' prepared by Mr Paul Cavallo of IBI – Independent Building Inspections and dated 19 August 2016. Mr Cavallo was not present at the on-site hearing. 6. The respondents, through their barrister Mr Fozzard, reject the claim and press for the dismissal of the application. Mr Fozzard specifically objects to the inclusion of Mr Cavallo's report on the basis that Mr Cavallo has not agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 and has not complied with the requirements in that Code in the preparation of his report. 7. The trees in question are two golden cultivars of Cupressus macrocarpa (Monteray Cypress). They are two of four or five similar trees planted by the respondents in 2000 shortly after the respondents moved onto their property. The respondents value the trees for the shade, screening and general amenity they provide. The trees have been pruned so that little of the canopy overhangs the applicants' property. The two trees have been planted within a metre of the common boundary. 8. The applicants' property in contention includes a paved area bounded by the applicants' dwelling, back lawn and the rear fence. A pitched roof pergola that is roofed in polycarbonate sheeting covers the majority of the paved area. 9. The eastern and partially enclosed end of the pergola is close to the dividing fence, and thus close to one of the trees. Beneath the eastern end of the pergola and very close to the fence is a gas barbecue mounted in a brick and tile structure. 10. 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…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction.