Argyrou & anor v Henderson & anor [2017] NSWLEC 1422

Land and Environment Court New South Wales

Medium Neutral Citation: Argyrou & anor v Henderson & anor [2017] NSWLEC 1422 Hearing dates: 19 July 2017 Date of orders: 08 August 2017 Decision date: 08 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [48] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; damage over period of applicants' ownership; compensation and rectification Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Texts Cited: Nil Category: Principal judgment Parties: Mr Costa Argyrou (First applicant) Ms Kateryna Argyrou (Second applicant) Ms Claire Henderson (First Respondent) Mr Robin Bromby (Second respondent) Representation: Applicants: C & K Argyrou (Litigants in person) Respondents: Mr Nicholas Eddy (Solicitor) Solicitors: Nicholas Eddy & Company File Number(s): 143111 of 2017 Publication restriction: No

judgment 1. COMMISSIONER: The applicants became the registered proprietors of their property on 19 January 2017. Approximately four months after the applicants purchased their Paddington property, they applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be made at the respondents' expense: * removal of the respondents' large Liquidambar, its trunk and roots; * compensation of $2,840 for various reports and invoices; * removal and replacement of the sewer quoted at $12,000; * landscaping including supply and installation of new pavers quoted at $14,278; and * removal and replacement of the existing timber dividing fence quoted at $2,740. 1. The orders are sought on the applicants' contention that the tree has encroached onto their land, has caused physical damage to their property and house; and is unduly interfering with the comfortable and convenient enjoyment of their property (presumably by their tenants). 2. In regards to the order sought tor compensation for various reports, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 3. In their Application Claim Form the applicants state that the tree has caused the following damage: * blocking of gutters and downpipes leading to water and moisture damage; * lifting, cracking and blocking of the earthenware sewer pipes; and * lifting of pavers which has also created a trip hazard. 1. The applicants submit that the roots will inevitably cause damage to the foundations of their dwelling. In support of this claim they rely on a letter from a structural engineer, Mr Martin Zimmerman (Exhibit C) and documents, invoices and reports in Exhibit B - Affidavit of Costa Argyrou, (the first applicant) to support their case. 2. The applicants' property (no. 79) is the adjoining property to the southwest of the respondents' property (no. 81). The parties' dwellings are two in a row of terrace houses. 3. The respondents have lived on their property for some 23 years, over which time they state that the applicants' property had been leased by a succession of owners. Further, in that time, the respondents had not heard of any complaints about the tree from any of the tenants, including recent tenants with an eight year old son who frequently played with his friends in the backyard of no. 79. They contend that as the applicants had lived for some years in the adjoining property to the northeast (no. 83), the applicants were well aware of the Liquidambar growing in the respondents' backyard when they purchased their property. The respondents maintain that Liquidambar roots were clearly visible in the applicants' backyard when the applicants purchased their property and that none of the alleged damage has occurred since the applicants purchased their property. 4. In regards to the sewer claim, the respondents note that two other large trees are in the vicinity, a Eucalyptus microcorys (Tallowwood) on the adjoining property to the northeast of their property (no. 83), and a Celtis sp. on the adjoining property to the southwest of the applicants' property (no. 77). The respondents stated that they too have had sewer blockages and ten years ago had the sewer relined; this did not entail the removal of the old pipes and there have been no further problems. They submit that the applicants have not considered this alternative. 5. In the second respondent's affidavit (Exhibit 1), comments are made regarding Mr Zimmerman's report. The uncontested statement is that after purchasing their property the applicants gutted the property including excavating rooms at the rear of the dwelling which adjoin the courtyard. The area was then re-floored. The respondents assume that if there had been structural damage to the rear of the property it would have been obvious then. 6. The respondents do not wish to remove the tree as they value it for the shade and amenity it affords their property.