Dimitrios Michos & Another v Council of the City of Botany Bay

Dimitrios Michos and another brought an action against the Council of the City of Botany Bay, seeking relief from nuisance caused by fig trees growing on the Council's land adjacent to their residential property. The plaintiffs alleged that the roots of the fig trees extended into their property, causing damage to their lawns and structures. They sought an assessment of the cost of repairing the damage to the structures on their land and an apportionment of this cost between any damage caused by the fig tree roots and any deterioration due to environmental factors. Additionally, the plaintiffs claimed a loss of amenity and sought a mandatory injunction to remove the fig tree roots and prevent further ingress of roots.

The legal issues before the court included whether the fig tree roots extended into the plaintiffs' property, whether these roots caused the alleged damage, and if so, the extent of the cost apportionment. Another issue was whether the plaintiffs had suffered any loss of amenity and whether the circumstances warranted the grant of a mandatory injunction to remove the fig tree roots.

The court considered the evidence presented by both parties and examined the extent of the fig tree roots' ingress into the plaintiffs' property. It determined that the roots had indeed extended into the plaintiffs' land and caused damage to their lawns and structures. The court further found that a significant portion of the damage was attributable to the fig tree roots, rather than solely to environmental factors. Regarding the loss of amenity, the court found that the plaintiffs had suffered some reduction in the enjoyment of their property. Consequently, the court granted a mandatory injunction to remove the fig tree roots and prevent further ingress, while also apportioning the cost of repairs between the parties based on the extent of the damage caused by the roots.

The final orders included the mandatory injunction to remove the fig tree roots and prevent further ingress, and apportionment of the repair costs between the plaintiffs and the Council based on the court's findings regarding the extent of the damage attributable to the fig tree roots.