Afanasiev v Imbrosciano

[2015] NSWLEC 1172

Land and Environment Court

New South Wales

Medium Neutral Citation:	Afanasiev v Imbrosciano [2015] NSWLEC 1172
Hearing dates:	21 May 2015
Date of orders:	21 May 2015
Decision date:	21 May 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see paragraph [X]
Catchwords:	TREES [NEIGHBOURS] Damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Alexis Afanasiev (Applicant) Angela Imbrosciano (Respondent)
Representation:	Applicant: A. Afanasiev (Litigant in Person) Respondent: A Imbrosciano (Litigant in person)
File Number(s):	20138 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of three trees from an adjoining property in Hinchinbrook as well as compensation for damage alleged to have been caused by the respondent’s trees.

2. The application is made on the basis that the trees have caused, or could cause, damage to the applicant’s property. No claim has been made in regards to injury.

3. The nominated trees are the stump of a previously removed Fig tree (Tree 1), another Fig tree (Tree 2) and a palm (Tree 3). The damage said to have been caused by the roots of the Fig trees is lifting and displacement of pavers, displacement of a clothes line, and lifting and displacement of weed mat beneath pebble mulch. No damage has been caused by the Palm. The application claim form also refers to damage to the dividing fence and potential damage to underground pipes on the applicant’s property.

4. Several weeks ago, the respondent removed the remaining Fig tree and poisoned the stump. While the remains of Tree 1 are not visible on the respondent’s side of the dividing fence, the respondent did not dispute that a Fig tree had been removed from close to the fence many years ago. Section 4(4) of the Act permits the Act to apply to trees that were wholly or principally located on a respondent’s land before the damage occurred but have since been removed.

5. In applications under Part 2, the key jurisdictional test is found in s 10(2). Relevant here, s 10(2)(a) states that the Court must not make an order under Part 2 unless it is satisfied that any of the trees the subject of an application, have caused, are causing, or could in the near future cause damage to property on the applicant’s land.

6. It was clear from the inspection of the applicant’s property that surface roots from both tree 1 and tree 2 have caused displacement of pavers, weed mat and the posts that support the clothesline. There is some minor displacement of the timber dividing fence however this is not pressed by the applicant.

7. I am satisfied on this evidence that s 10(2) is met for trees 1 and 2 and that the Court’s power to make any orders it thinks fit under s 9 of the Act is engaged.

8. As the figs have been removed, that part of the claim has been actioned. The applicant seeks compensation for the cost of replacing the pavers and weed mat as well as the replacement of the clothes line.

9. While the pavers are displaced, they are not broken and do not need to be replaced but need to be reset. Similarly, the clothesline is in good order but the support posts need to be removed and reset to vertical. In order to make good the rear/eastern portion of the applicant’s property, the pebbles and pavers are to be lifted, the old weed mat removed, the clothesline dismantled and the area excavated to a depth sufficient to remove the surface roots of the figs and enable the relaying of the pavers and the reinstatement of the clothesline. Prior to the resetting of the pavers and installation of new weed mat and replacement of pebbles, the area is to be compacted. As the most recently removed fig has been poisoned, no ongoing damage can be expected.

10. The respondent agreed with this proposal.

11. No evidence was adduced as to any problems with the pipes. As no damage has been caused by the palm, or is likely in the near future to be caused by it, the application in respect of the palm is dismissed.

12. Therefore, as a consequence, the Orders of the Court are:

1. The application is upheld in part.

2. The respondent is to engage and pay for a suitable contractor to carry out the works in paragraph [9] of this judgment. The applicant may obtain up to 3 quotes for the work. The work is to be completed within 90 days of the date of these orders.

3. The applicant is to provide all reasonable access, on reasonable notice, for the purpose of quoting and the carrying out of the works in (2).

__________________________

Judy Fakes

Commissioner of the Court

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