Koumoukelis v Zaglas [2018] NSWLEC 1696

Land and Environment Court New South Wales

Medium Neutral Citation: Koumoukelis v Zaglas [2018] NSWLEC 1696 Hearing dates: 20 December 2018 Date of orders: 20 December 2018 Decision date: 20 December 2018 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [50]. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): high hedges – views and privacy – damage to lawn Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes between Neighbours) Regulation 2007 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Haindl v Daisch [2011] NSWLEC 1145 Robson v Leischke [2008] NSWLEC 152 [225] Tenacity Consulting v Warringah [2004] NSWLEC 140 Texts Cited: Expert Witness Code of Conduct (NSW Uniform Civil Procedures Rules, 2005) Workcover NSW Code of Practice for the amenity tree industry Category: Principal judgment Parties: Angela Koumoukelis (Applicant) Arthur Zaglas (Respondent) Representation: Counsel: N Hammond (Applicant)

Solicitor: Cordato Partners Lawyers (Applicant)

Other: A Zaglas, litigant in person (Respondent) File Number(s): 2018/231603 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: Mrs Koumoukelis, of Burraneer, submitted an application, pursuant to s 7 of Part 2, and to s 14 B of Part 2A of the Trees (Disputes between Neighbours) Act 2006 (the Act). 2. About seven years ago, the respondent, Mr Zaglas, planted Bambusa textilis 'Gracilis' (Slender Weaver's Bamboo) along his northern side boundary, and along a section of the southern side boundary of his rear yard. Bamboo is prescribed in the Trees (Disputes between Neighbours) Regulation 2007 as a 'tree' for the purpose of the Act. The application under Part 2 relates to alleged damage resulting from roots of the bamboo encroaching into the applicant's rear yard. The boundary runs approximately east – west, and is currently delineated by a steel panel fence. 3. In her application under Part 2, Mrs Koumoukelis seeks orders to: 1. Remove the bamboo root matter from the lawn area of the rear yard closest to the southern boundary of her property by cultivation, and dispose of roots. 2. Replace the lawn turf and establish the new lawn for ongoing health. 3. Rebuild the low brick wall, including integrating a root barrier, and drainage behind the wall, if roots have disturbed the low brick wall parallel to the boundary. 4. Reinstate the fence on the common boundary, as necessary. 5. Install a root barrier to one metre depth along the boundary the length of the lawn area within the applicant's rear yard. 6. Require the respondent to pay the cost of these works. 1. Under Part 2A, Mrs Koumoukelis claims that the bamboo hedges severely impact her water views of Burraneer Bay to the south, south-west. She seeks orders to: 1. Prune the hedge growing inside the respondent's northern boundary to a height of no more than four metres, and maintain that height by pruning twice a year in autumn and spring. Include pruning of bamboo protruding over the boundary into the applicant's land, and all pruning is to be completed by an AQF level 3 arborist. 2. Prune the hedge growing inside the respondent's southern boundary to a height of no more than four metres, and maintain that height by pruning twice a year in autumn and spring. 1. Alternatively, should the respondent remove the hedge and replant, Mrs Koumoukelis seeks: 1. Planting of appropriately selected hedging species which are to be maintained at a maximum of four metres in height by pruning twice a year in autumn and spring. This includes pruning to restrict the hedge width along the boundary, as required. A suggested species list has also been included. 2. That the applicant and respondent are to provide all reasonable access to one another's property for the purpose of complying with these orders and for the works to be carried out safely and efficiently on 3 days' notice. 3. That the respondent pay the cost of these works. 1. Mr Zaglas rejects Mrs Koumoukelis' claim for root damage, and her proposed order for installation of a root barrier, but is open to negotiation with respect to the hedge pruning.