Chu v Dalamagas

[2023] NSWLEC 1202

Land and Environment Court

New South Wales

Medium Neutral Citation:

Chu v Dalamagas [2023] NSWLEC 1202

Hearing dates:

24 January 2023

Date of orders:

2 May 2023

Decision date:

02 May 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [48] below.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to fence and concrete paving – whether overhanging branches are causing house damage or excessive maintenance

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss

7, 8, 9, 10, 12

Category:

Principal judgment

Parties:

Damien Sato Chu (Applicant)
George Dalamagas (First Respondent)
Georgina Dalamagas (Second Respondent)

Representation:

D Chu (Self-represented) (Applicant)
N Dalamagas (Agent) (Respondents)

File Number(s):

2022/304472

Publication restriction:

Nil

Judgment

Background

1. The applicant, Damien Chu, shares a rear boundary between his Burwood property and that owned by the respondents, George and Georgina Dalamagas. Mr Chu occupies his residence while the respondents’ property is leased to tenants. Both properties have been owned by the respective party’s families for at least 20 years.

2. At issue is a Cinnamomum camphora (Camphor laurel) (the tree) that is growing close to and across the common boundary in the respondents’ rear yard. The applicant claims that the tree has caused and is causing damage to his property and is likely to cause further damage in the near future.

3. The applicant provided evidence of correspondence with the respondents since October 2021 via the respondents’ property agent, but his claims were consistently rebuffed.

4. Consequently, on 12 October 2022, Mr Chu made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage caused by the tree.

The applicant’s claim

5. The applicant proposed the Court make the following order:

1. “to trim/ remove the branches of the offending tree to prevent injury to any person, and further damage to my property and to the surrounding areas.”

6. The respondents resist the applicant’s claims. During submissions, the applicant advised that his preference was tree removal, but claimed he nonetheless sought orders in his application for pruning as a result of the respondents’ daughter Dimitra advising, via an email from the respondents’ property agent dated 13 December 2021, that the “removal of the tree is extremely expensive and unaffordable for my father”.

7. In his reply later the same day, the applicant highlighted the damage that the tree was causing to the common boundary fence and concrete paving slabs but, after acknowledging the “financial challenge” of the cost of tree removal, requested the respondents employ “professionals to remove some of the troublesome branches”.

8. On 12 May 2022, Mr Nick Dalamagas, via an email from the respondents’ property agent, advised the applicant that the cost of pruning overhanging branches was the applicant’s responsibility. In his reply of 14 May 2022, the applicant reiterated that responsibility for overhanging branches, and damage to the fence and concrete, “is with the owners of the offending tree”.

The on-site hearing

9. The tree was about 12 metres tall, with a canopy spread…