Fazakerley v Lekovic

[2021] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation:

Fazakerley v Lekovic [2021] NSWLEC 1502

Hearing dates:

01 June 2021

Date of orders:

01 September 2021

Decision date:

01 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Pt 2 application is refused.

(2) The Pt 2A application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – neighbouring trees – whether the trees have caused damage – whether damaged property is the applicant’s – Pt 2A application concerning obstruction of sunlight – whether sunlight to a window is obstructed

Legislation Cited:

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

Cases Cited:

Cayley v Gervay [2021] NSWLEC 1254

Category:

Principal judgment

Parties:

Robert Fazakerley (First Applicant)
Megan Fazakerley (Second Applicant)
Milos Lekovic (First Respondent)
Brenda Lekovic (Second Respondent)

Representation:

R Fazakerley (Litigant in Person) (First Applicant)
M Fazakerley (Litigant in Person) (Second Applicant)
S Cominos (Counsel) (Respondents)

Solicitors
Solari & Stock (Respondents)

File Number(s):

2021/50223

Publication restriction:

No

Judgment

Background to the application

1. Robert Fazakerley and Megan Fazakerley (‘the applicants’), owners of their residential Port Hacking property, 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 orders relating to neighbouring trees. Their application did not specify the orders they sought, but they later clarified that they want the trees removed and their stumps poisoned. The trees grow on an adjoining property belonging to Milos Lekovic and Brenda Lekovic (‘the respondents’).

The hearing

2. The matter was heard onsite, allowing observations of the subject trees and both properties. The applicants were self-represented; Mr Cominos, of Counsel, represented the respondents. No expert evidence was adduced. The respondent filed subpoenaed documents from Sutherland Shire Council (‘Council’) and Sydney Water Corporation (‘Sydney Water’).

The trees

3. Both the Pt 2 application and the Pt 2A application concern a row of 13 lilly pillies (‘the trees’), up to 16 metres tall, growing on the respondent’s land close to and along the common boundary shared with the applicants.

The Pt 2 application

Reasons for the application

4. The Fazakerleys seek removal of the trees on the basis that, on multiple occasions, the trees’ roots have blocked a Sydney Water sewer pipe within an easement along the rear of their property and other neighbouring properties. This caused sewage to overflow onto their land, creating a health hazard. They also allege the tree’s shade during winter has damaged their back garden.

Framework for the Pt 2 application

5. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the trees’ owners (s 10(1)(a) of the Trees Act).

6. Then, at s 10(2) of the Trees Act, is the key jurisdictional threshold under Pt 2:

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