Kapsanis v Hoey

[2015] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kapsanis v Hoey [2015] NSWLEC 1192
Hearing dates:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed
Catchwords:	Trees (Disputes Between Neighbours); damage to property; risk of injury; dividing fence; application dismissed.
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Spiro Kapsanis (Applicant) Mavis Hoey (Respondent)
Representation:	Spiro Kapsanis, litigant in person (Applicant) Timothy Tunbridge, solicitor (Respondent)
File Number(s):	20180 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. A single Oleander tree stands next to the boundary in a back garden in Kingsgrove. Along the boundary is a timber paling fence. Mr Kapsanis owns and lives at the neighbouring property that shares the boundary fence. Wishing to replace the fence, Mr Kapsanis has applied to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for the tree to be removed and a new fence erected along the boundary. He says tree removal is required as the stem of the tree encroaches over the boundary, preventing a new fence being built on the boundary. Mrs Hoey says the tree is on her land and that it has not damaged the fence. She does not seem to object to a new fence being built.

Jurisdictional framework

2. According to s 10(2) of the Trees Act the Court can only make orders if it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person.

Onsite hearing

3. The onsite hearing allowed all relevant matters to be viewed. The tree is a mature Oleander. It is more than 100 mm from the existing fence. For its entire length the fence is dilapidated. It leans into the applicant's land, is missing palings, has rotted palings and palings that are tied on to the rails or adjacent palings. Mrs Hoey has lived at her property for 60 years and says the fence has not been replaced in that time. This explains its condition. According to the applicant's own submissions, the fence is in poor condition along its entire length, all of which requires replacing.

Damage

4. Mr Kapsanis stated that he does not think the tree has directly damaged the fence. His main concerns regarding the tree relate to its position preventing a new fence being erected on the boundary, and the potential for tree roots to damage sewer pipes on his property and a concrete slab that is to be constructed in the future. Regarding this last element of his submissions, the Court cannot make orders based on potential damage to property that does not exist. Regarding the sewer pipes, Mr Kapsanis was unable to demonstrate any evidence that this tree would damage his sewer, but rather his concerns are that roots of any tree can damage pipes, therefore it is possible here. The mere possibility that damage may be caused does not satisfy the jurisdictional test: the Court must be satisfied that damage is likely to occur in the near future. Mr Kapsanis says the sewer pipes were installed during construction works on his property and thus are PVC. I do not accept that they are likely to be damaged by Oleander roots in the near future.

5. Returning to the fence, Mr Kapsanis contends that the existing fence is not on the boundary, relying on a survey plan and report that he commissioned after the directions hearing. Mr Tunbridge, solicitor for the applicant, objects to that report because it does not satisfy the Court’s earlier directions, in particular it does not include any statement that the author agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. Nevertheless the Court accepts the report but gives it the weight that it deserves. The author's name is not on the report. The methodology of the survey is not explained and most importantly, where the survey plan states that the tree face encroaches over the boundary by 60 mm, it is not clear at what height this was measured. Although Mr Kapsanis suggests that this must be at ground level, with the lack of explanation in the report I cannot accept this.

6. Even if I were to accept Mr Kapsanis' contention that the boundary runs through the base of the tree, I find, as he says himself, that the tree has not damaged the fence.

7. Mr Tunbridge says that even if the alignment of the fence is not on the boundary, in his view a new fence could be constructed on the boundary without removing the tree. This is not a matter with which I have to concern myself. Because I am not satisfied that the tree has damaged the fence, or is likely to in the near future, the Court has no jurisdiction regarding this element of the application. The Court has jurisdiction over boundary fences under s 13A of the Dividing Fences Act 1991, but only when the tree has damaged the fence. Therefore if the tree does require removal for the fence to be replaced on the boundary, that is a matter to be dealt with under the Dividing Fences Act 1991, which has jurisdiction over vegetation that would need to be removed to erect the fence.

Injury

8. The final matter regarding the tree relates to its potential to cause injury. In his application Mr Kapsanis says injury may arise due to the narrow walkway between his granny flat and the leaning fence. Because I find that the condition of the fence is not due to the tree, any injury relating to narrowness of the pathway would not be injury caused by the tree. Mr Kapsanis also says branches may fall and injure a person. The tree has no large hazardous branches and, bringing my own arboricultural expertise to the matter, I do not accept that branches are likely to fall.

9. Mr Tunbridge submits that the application should be dismissed and Mrs Hoey awarded costs. Commissioners of the Court do not have the power to order costs, which would require a Notice of Motion to be heard by a Judge or the Registrar of the Court.

Orders

10. As a result of the foregoing the Court orders that:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 29 May 2015