Jones and Gunnis v Onisforou [2018] NSWLEC 1451

Land and Environment Court New South Wales

Medium Neutral Citation: Jones and Gunnis v Onisforou [2018] NSWLEC 1451 Hearing dates: 17 July 2018; 20 August 2018 Date of orders: 20 August 2018 Decision date: 20 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: See orders at [25] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to retaining wall – tree has been removed – apportionment. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Melissa Jones (First Applicant) Annette Gunnis (Second Applicant) Theo Onisforou (Respondent) Representation: M Jones and A Gunnis, litigants in person (Applicants) T Onisforou, litigant in person (Respondent) File Number(s): 2018/153563 Publication restriction: No

Judgment

Background 1. Theo Onisforou ('the respondent') has owned his Surry Hills property for some 20 years, he estimates. 2. Melissa Jones and Annette Gunnis ('the applicants') purchased the neighbouring property approximately six years ago. In mid-2016 they notified Mr Onisforou that his tree was damaging the retaining wall along their common boundary, and paving and a water pipe on their property. On three occasions (November 2016, February 2017 and July 2017), they engaged a plumber to repair their water pipe, the three visits costing them $605. 3. In August 2017, Mr Onisforou applied to Sydney City Council for permission to remove the tree. Council refused permission for tree removal. 4. Ms Jones and Ms Gunnis applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for removal of the tree, rectification of the boundary retaining wall and fence, compensation for pipe repairs and costs for reports. 5. Commissioners of the Court cannot make orders for costs of reports and other costs of making an application, so if the applicants wish to pursue this they will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court. 6. Following concerns about the stability of the retaining wall, a brief hearing was held in Court on 17 July. I was satisfied from the photographic evidence that the tree had caused damage to the retaining wall, and that it posed a risk of injury and damage due to structural defects in major branches, requiring its removal. Interlocutory orders were made for its removal. At the onsite hearing on 20 August, only its stump remained.