Boustany v Kondos [2018] NSWLEC 1194

Land and Environment Court New South Wales

Medium Neutral Citation: Boustany v Kondos [2018] NSWLEC 1194 Hearing dates: 19 April 2018 Date of orders: 19 April 2018 Decision date: 19 April 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to garage; tree was present when garage constructed; trees can be expected to grow; absence of written communication between the parties. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Category: Principal judgment Parties: Susie Boustany (First Applicant) Ronny Boustani (Second Applicant) Georgia Kondos (First Respondent) Mary Kondos (Second Respondent) Representation: Susie Boustany, litigant in person (Applicants) Georgia Kondos, litigant in person (Respondents) File Number(s): 2018/15869 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Thirty years ago, when Mrs Susie Boustany (she and Ronny Boustani are the applicants) built a garage on their Brighton-Le-Sands property, their local council required special construction methods for the section closest to a neighbouring tree. Several courses of brickwork at the base of the wall were omitted, with the wall above supported by a steel lintel spanning the tree's root buttress, allowing the garage to be constructed in its proposed location without removing the tree. 2. The neighbouring tree was a Norfolk Island Pine (Araucaria heterophylla) with the base of its stem close to or across the common boundary. 3. As might be expected of a healthy tree, the pine continued to grow. Around eight years ago the applicants first noticed the garage's roller door became difficult to close; later they noticed a crack in the garage wall. Since then, further damage has occurred. A vertical crack extends up and through the garage wall directly above the base of the tree. This crack is wider at its top. Other cracks in the garage's walls and piers are consistent with displacement resulting from tree growth. A crack runs from the base of the tree across the garage slab. Christopher Paunescu, an engineer engaged by Georgia Kondos and Mary Kondos (the respondents), assessed the garage and concluded these various elements of damage are due to the tree. Bayside Council's Tree Management Officer assessed the situation when he received an application to remove the tree and concluded that the tree had damaged the garage. 4. Council advised the respondents in May 2017 that they were permitted to remove the tree. The respondents, who have owned the neighbouring property, including the tree, only since 2007, removed the tree at their expense in June 2017. 5. The applicants now seek orders from the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), for the respondents to pay for repairing the garage. The quote they provide for this work is for $27,000.