Allen v Kalokotos [2019] NSWLEC 1538

Land and Environment Court New South Wales

Medium Neutral Citation: Allen v Kalokotos [2019] NSWLEC 1538 Hearing dates: 19 December 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to shed and fence – apprehension of injury – expectation of maintenance Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Graeme Allen (First Applicant) Margaret Allen (Second Applicant) Nick Kalokotos (Respondent) Representation: G Allen (Litigant in person) (First Applicant) M Allen (Litigant in person) (Second Applicant) N Kalokotos (Litigant in person) (Respondent) File Number(s): 2019/299798 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication. 1. COMMISSIONER: The applicants, Mr and Mrs Allen, share a property boundary with Mr Kalokotos, the respondent, where the rear of the Allen's land meets the western side of Mr Kalokotos' rear yard in Erowal Bay. Mr Kalokotos' property has been owned by his family for many decades, and is currently occupied by his daughter. I understand that the Allen's have also owned their property for many years, and that the dispute over the trees has been protracted. 2. Mr and Mrs Allen lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to remedy damage that two trees have caused, are causing, and are likely to cause in the near future. They further claim that the trees represent a serious risk of injury to their family. 3. The main tree for consideration is a mature Cupressus macrocarpa 'Brunniana' (Monterey Cypress) (T1), about 14 metres in height with a canopy spread of approximately 12 metres. It is located off centre of Mr Kalokotos' back yard, about 5 metres from the common boundary. The second tree (T2), is a small Melaleuca bracteata, about 5 metres tall, growing close to the common boundary.