Ebrahim & anor v Agostini & anor [2017] NSWLEC 1403

Land and Environment Court New South Wales

Medium Neutral Citation: Ebrahim & anor v Agostini & anor [2017] NSWLEC 1403 Hearing dates: 20 July 2017 Date of orders: 01 August 2017 Decision date: 01 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; debris; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Swimming Pools Act 1992 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Makarios & Gada Ebrahim (Applicants) Eric & Fiona Agostini (Respondents) Representation: Applicants: M Ebrahim (Litigant in person); Ms I Girgis (Agent) Respondents: E & F Agostini (Litigants in person) File Number(s): 81448 of 2017

judgment 1. COMMISSIONER: In 2002, the applicants purchased their Voyager Point property, which included an in-ground swimming pool in the south-eastern corner of the backyard. 2. The applicants contend that four trees in a row of Leyland Cypress growing on the northern side of the respondents' property, and along part of the common boundary between the parties' properties, have caused damage to the applicants' property. The damage allegedly caused by the respondents' trees includes displacement of the metal dividing fence, blocking of the pool filter, cracks in the pool, displacement of pool lights, cracked and loose pool pavers, and cracks in ornamental "rocks" used as landscaping/hardscaping features around the pool. They also claim that the trees are a climbing hazard and provide access to the pool. Additionally, they are concerned that the trees are so tall that any storm or strong wind could cause branches or entire trees to fall onto their property and thus potentially cause injury to anyone on it. 3. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the following orders to be made at the respondents' expense: * Remove the four trees, including any debris and all roots from the applicants' property; * repair and or replacement of paving and landscaping features; * repair of the fence; * engagement of a suitably qualified engineer to survey the pool in order to establish damage to the pool caused by pressure cracking as a result of tree root damage and subsequent repairs; * reimbursement of $325.80 for the cleaning of the pool and related apparatus; and * all works to be completed by 31 October 2017. 1. 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. 2. The respondents reject the applicants' contentions on the basis of insufficient evidence and do not wish to remove the trees. According to the respondents' evidence (Exhibit 1) the trees, and eight others, were planted in about 2009. In 2011, in response to complaints from the applicants the respondents removed eight of the trees. They suggest that rather than remove the trees, which they value for privacy and amenity, the applicants, at their expense, could install a pool blanket and skimmer box sock and or prune the trees. The respondents state that there is no contact between their trees and the fence and the displacement was due to palms growing on the applicants' property but which have since been removed. 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…". 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. 2. The hearing was heard on site; the parties and I inspected the alleged damage and the trees.