Immarrata v Mourikis

[2007] NSWLEC 601

Land and Environment Court

of New South Wales

CITATION:	Immarrata v Mourikis [2007] NSWLEC 601
PARTIES:	APPLICANT Carmina Immarrata RESPONDENT Evelyn Mourikis
FILE NUMBER(S):	20658 of 2007
CORAM:	Bly C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- removal of a row of Lilly Pilly trees,
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	12/09/2007
EX TEMPORE JUDGMENT DATE:	12 September 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms C. Immarrata, litigant in person RESPONDENT Ms E. Mourikis, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C
Fakes AC

12 September 2007

20658 of 2007 Carmina Immarrata v Evelyn Mourikis

JUDGMENT

This decision was given extemporaneously. It has been revised and edited prior to publication.

1 COMMISSIONERS: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) in relation to an application by Mrs C Immarrata of 40 MacDonald Crescent, Bexley North for the removal of a row of Lilly Pilly trees (the actual species is unknown) in the adjoining property at 38 MacDonald Crescent. That adjoining property is owned by Ms E Mourikis and Mr J Warner

2 We are satisfied that the parties have, pursuant to s 10 of the Act, made reasonable efforts to resolve this matter.

3 In dealing with the concerns of Mrs Immarrata we have taken into account her evidence that, these trees when flowering, are likely to attract significant swarms of bees and that she is allergic to bee stings. She is also concerned that the trees are likely to keep growing and become excessively large with root systems that could damage her home.

4 In response Mr Warner said that he was also concerned about potential damage to his own property and that should the trees' roots begin to damage his own property which he expected would (if it were to occur) affect his property first, he would seek to have them removed. He nevertheless did not wish to have the trees removed and would be prepared to agree to prune them on a regular basis.

5 As for potential damage to the property at 40 MacDonald Crescent, we have seen no evidence of existing damage and have not been persuaded that damage is likely to result in the near future. We are satisfied that on inspection these Lilly Pilly trees are unlikely to produce roots of a size that would cause damage particularly taking into account the constrained nature of the planter bed in which they are situated and, given their close planting, competition between individual trees.

6 As for the concerns about the likelihood of these trees attracting bees and where the bees might attack and sting the applicant we understand that the trees have not flowered since they were planted and have not caused a bee swarm problem. Whilst we expect that this is nevertheless possible we do not accept that it is, in present circumstances, likely. In this regard we also note that these trees only typically flower once per year and that there are other trees, plants and grasses in this neighbourhood that attract bees. Therefore these trees do not constitute an unusual risk.

7 Finally, even if we had a been persuaded that there is a bee sting problem we are doubtful that we would be able to make orders in these circumstances, requiring the removal of the trees because the Act relevantly only applies where the tree concerned, as distinct from the bees, is likely to cause injury to any person.

8 For the above reasons we have decided that the appeal should be dismissed.

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T A Bly
Commissioner of the Court

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J Fakes
Acting Commissioner of the Court
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