Genakis v Callil

[2008] NSWLEC 38

Land and Environment Court

of New South Wales

CITATION:	Genakis v Callil & anor [2008] NSWLEC 38
PARTIES:	APPLICANT Anna Genakis RESPONDENT Colin and Wadie Solomam Callil
FILE NUMBER(S):	21025 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- damage to property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	18/01/08
EX TEMPORE JUDGMENT DATE:	18 January 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

18 January 2008

21025 of 2007 Anna Genakis v Colin Callil & anor

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Ms Anna Genakis of 35 King Street Enfield concerning three Casuarina glauca trees (the trees) located close to the common boundary but on the adjoining property of a residential flat building owned by Colin and Wadie Soloman Callil at 104 Mitchell Street Enfield.

2 The extemporaneous decision was given on site on 18 January 2008 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Ms Anna Genakis’s application is to require the removal of the three trees. Her concerns related to:

• the tree overhangs her property and drops leaves and small branches and prevents the use of the yard by her son,
• the tree roots enter her property and produce suckers that will affect proposed building renovations and landscaping, and
• the tree roots have damaged the concrete garage floor.

4 Mr Callil states that the removal of the trees is not necessary. He does not accept that they caused the cracking of the garage floor or that they are dangerous. Their removal would deny shade for the playground equipment located in this area for the residential flat building.

5 Mr Callil’s property is a battle-axe lot and the trees are located along the side of the site that contains playground equipment. This area adjoins the rear boundary of Ms Genakis’s property. The trees are evergreen and some 18-20 m in height, mature and in good health with no noticeable structural faults or excessive amounts of dead wood that could be observed from the ground inspection. Of the three trees, the middle tree is located close to the common boundary while the other trees are some 2 m from the boundary. The middle tree has a limb that extends over the boundary.

6 We accept that the dropping of leaves, small branches and the suckers from the tree roots into Ms Genakis’s property falls within the circumstances set out in Barker v Kyriakides [2007] NSWLEC 292 where it states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

7 We are also not satisfied that the roots of the tree have caused the damage to the garage floor on Ms Genakis’s property. The cracks in the floor are significant and are most likely to have been caused by age and lack of reinforcing material in the concrete. The size of the roots that could be observed in Ms Genakis’s property were relatively small and not capable of causing the significant cracks to the concrete floor.

8 For the reasons mentioned above, we are not satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants property, or (s 10(2)(a)) is likely to cause injury to any person (s 10(2)(b)) and as such, no orders can be made

9 For these reasons we have concluded that the application should be dismissed.

10 Ms Genakis indicated that she would make application to the council to remove the overhanging branch from the middle tree, at her cost, and we note the agreement of Mr Callil that the limb can be removed beyond the boundary to the branch collar at the trunk.

___________
G T Brown
Commissioner of the Court

___________
Peter Thyer
Acting Commissioner of the Court