Girilakis v Jerks

[2015] NSWLEC 1279

Land and Environment Court

New South Wales

Medium Neutral Citation:	Girilakis v Jerks [2015] NSWLEC 1279
Hearing dates:	17 July 2015
Date of orders:	24 July 2015
Decision date:	24 July 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [12]
Catchwords:	TREES [NEIGHBOURS] Damage to property; consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Mr J Girilakis (Applicant) Ms W Jerks (Respondent)
Representation:	Applicant: Mr E Calligeris (Agent) Respondent: Mr G Miller (Solicitor)   Solicitors: Respondent: Willis & Bowring
File Number(s):	20384 of 2015

Judgment

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a tree growing on an adjoining property and compensation for damage to his garage that he contends has been caused by the tree. The applicant guesses the damages to be in the vicinity of $20,000.00 but has provided no supporting quotes.

2. The matter commenced on site on 17 July 2015. The tree and the garage were inspected by the Court and the parties.

3. The tree is a mature Camphor Laurel growing near the rear south-western boundary of the respondent’s Kogarah Bay property, close to the dividing fence between the parties’ properties. The applicant’s garage is within 900mm of the fence and close to the tree.

4. Two large roots from the Camphor Laurel are visible between the fence and the concrete footing of the garage. Above the footing is a crack in the masonry wall.

5. The matter was adjourned at the parties’ request because of ongoing discussions between the parties and the need for the applicant’s agent, his nephew, to seek instructions.

6. The hearing has resumed today and the parties are asking the Court to make consent orders.

7. Before agreeing to make the orders the parties seek, the Court must be satisfied of its jurisdiction to do so.

8. In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

9. Injury is not pressed.

10. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [179] considers that it is sufficient to engage the Court’s jurisdiction to make orders if the tree, the subject of an application, is ‘a’ cause of the alleged damage.

11. On the evidence before me I am satisfied, to the extent required by s 10(2), that the Camphor Laurel is likely to be a cause of the crack in the applicant’s garage wall. Therefore, the Court’s jurisdiction to make the orders the parties seek is engaged.

12. Therefore, by consent, the Court orders:

1. The application to remove the tree is upheld.

2. The application for compensation is dismissed.

3. The respondent is to arrange for the removal of the tree to ground level and to poison the stump within 120 days of the date of these Orders.

4. The respondent is to pay for the removal costs of the tree.

5. The work in order (3) is to be carried out by an AQF level 3 arborist with appropriate insurance cover, and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

6. The applicant is to provide all necessary access, on reasonable notice, for the purpose of quoting and the safe and efficient carrying out of the works in (3).

________________________

Judy Fakes

Commissioner of the Court

**********