Badzovski v Karovski

[2021] NSWLEC 1794

Land and Environment Court

New South Wales

Medium Neutral Citation:

Badzovski v Karovski [2021] NSWLEC 1794

Hearing dates:

16 December 2021

Date of orders:

16 December 2021

Decision date:

16 December 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [17].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – trees damaging the common boundary fence – whether a tree is on the respondent’s land – the entire fence needs replacing – orders for tree removal and fencing work – Pt 2A application concerning obstruction of sunlight – trees not planted – Pt 2A application refused

Legislation Cited:

Dividing Fences Act 1991, ss 3, 13A

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10,12, Pt 2A ss 14A, 14B

Cases Cited:

Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Texts Cited:

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Paskal Badzovski (Applicant)
Trajan Karovski (First Respondent)
Ilija Petrevski (Second Respondent)

Representation:

P Badzovski (Litigant in Person) (Applicant)
S Karovski (Agent) (Respondents)

File Number(s):

2021/274997

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: The Bexley property belonging to Paskal Badzovski (‘the applicant’) sits above a rock wall, separating it from the lower land of the adjoining property belonging to Trajan Karovski and Ilija Petrevski (‘the respondents’). The common boundary shared by the parties is on the higher land near the top of the rock wall. An old timber paling fence, dilapidated in places and absent in others, runs along the common boundary. Vegetation, mostly growing on the respondents’ side of the fence, is pushing against and through the fence in places. A camphor laurel (‘Tree 1’) appears to partly grow across the boundary.

2. Mr Badzovski has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking removal of Tree 1 and other vegetation along the fence line at the respondents’ expense, and for replacement of the boundary fence and its cost shared by the parties.

The hearing

3. The matter was heard via MS Teams. Mr Badzovski was self-represented, while Mr Steven Karovski, the first respondent’s son, represented the respondents. With the material filed by both parties, considered along with their submissions, I was able to make a decision without requiring a subsequent site view.

4. The respondents’ names were incorrect in Mr Badzovski’s application, and hence were recorded incorrectly by the Court. Leave was granted during the hearing for the application to be amended, recording the respondents’ names correctly.

The Pt 2 application

Reasons for the application

5. Mr Badzovski wants to replace the timber fence along the common boundary. He says the respondents’ trees have damaged the fence, and elsewhere the fence is old…