Mazurkiewicz v Mohamed

[2024] NSWLEC 1274

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mazurkiewicz v Mohamed [2024] NSWLEC 1274

Hearing dates:

20 May 2024

Date of orders:

20 May 2024

Decision date:

20 May 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Pt 2A application is refused.

(2) The Pt 2 application is granted to the extent of the following orders.

(3) Within 30 days of the date of these orders, the respondents, or a suitably qualified contractor engaged and paid for by the respondents, are to remove Tree 5, being the southernmost tree in the hedge in their front garden along their western boundary.

(4) The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the respondents could have prevented the damage – orders for one tree to be removed – Pt 2A application – neighbouring hedges – obstruction of sunlight and views – whether the obstruction is severe – Pt 2A application refused

Legislation Cited:

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

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Category:

Principal judgment

Parties:

Stanislaw Mazurkiewicz (Applicant)
Tamer Mohamed (First Respondent)
Vicki Flower (Second Respondent)

Representation:

Counsel:
P Moore (Agent) (Applicant)
T Mohamed (Self-represented) (First Respondent)
V Flower (Self-represented) (Second Respondent)

File Number(s):

2024/83225

Publication restriction:

No

Judgment

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

Background to the application

1. Stanislaw Mazurkiewicz (the applicant) has 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 for his Croydon Park neighbours Vicki Flower and Tamer Mohamed (together, the respondents) to remove trees and to compensate him for property damage.

2. Mr Mazurkiewicz’s Pt 2 application relates to damage to his brick-paved driveway and a brick wall along part of the common boundary – damage he says is caused by the five viburnum trees forming a hedge in the respondents’ front garden along the common boundary. (Mr Mazurkiewicz’s application showed seven trees here, but the number of trees (five) was confirmed during the onsite hearing.) Those trees were required as a condition of a development consent on the respondents’ property.

3. In his Pt 2A application, Mr Mazurkiewicz claims those same five trees obstruct sunlight to and views from his dwelling, and that another viburnum hedge in the respondents’ back garden obstructs his views.

Reasonable effort

4. Under both Pts 2 and 2A of the Trees Act, the Court cannot make orders unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondents and given the required notice of the application: ss 10(1) and 14E(1) respectively. Mr Mazurkiewicz says he has spoken to the respondents about all the issues raised in his application. Ms Flower and Mr Mohamed say they have never been told about most of Mr Mazurkiewicz’s claims, although Mr Mohamed and Mr Mazurkiewicz had a conversation one day about trimming parts of the tree overhanging Mr Mazurkiewicz’s property. The parties are not on friendly terms and avoid speaking to each other. They have been to court over other matters. It seems likely that there was a conversation about the trees, perhaps only once, about at least the nuisance they cause Mr Mazurkiewicz by growing over his property. Ms Flower and Mr Mohamed say they were not served with the application, as required, but found a copy of it had been placed in their letterbox. Their statement shows that they received the application and have been aware of all the issues raised therein since then. This gave them time to undertake any investigations or reports, should they wish, and to respond to the application. They filed a response on 30 April 2024. They then pruned the trees in their front garden two weeks prior to the hearing. Considering the material filed and the nature of communications during the onsite hearing, it seems clear to me that direct communication was probably best avoided. I am satisfied that Mr Mazurkiewicz made a reasonable effort to reach agreement.

Part 2 application

5. The key jurisdictional tests in the Pt 2 application are found at s 10(2) of the Trees Act. Before making any orders, I must be satisfied that the respondents’ viburnum trees have caused, are causing, or are likely in the near future to cause Mr Mazurkiewicz’s alleged property damage.

The brick wall

6. A vertical crack is apparent in the low brick wall that runs along the front section of the parties’ common boundary. Mortar has separated between bricks, and on one side of the crack the wall is raised by a few millimetres. Mr Mazurkiewicz says this damage was caused by roots of the adjacent viburnum trees. He has undertaken no investigations to demonstrate this. He submits that arborists and builders have assessed his property and told him that the neighbouring trees caused this damage, but he has provided no expert reports supporting this. Ms Flower and Mr Mohamed submit that Mr Mazurkiewicz has repaired other parts of his property since they came here in 2013, but never repaired this damage that they say existed when they purchased their property. They submit that they have never been told that their trees have caused damage.

7. I observed the crack in the wall, which appears to have been present for several years. The mortar exposed by the cracking is weathered. From my observations, I could not be satisfied that tree roots have caused the damage, so without any supporting evidence, I cannot make any orders for tree removal or compensation on this element of the application.

Paving

8. At the front of Mr Mazurkiewicz’s carport, brick pavers in the driveway are uneven. Several individual pavers nearest the southernmost tree in the front hedge (Tree 5) are distinctly raised in the way that brick paving often is when lifted by tree roots. These pavers are less than a metre from Tree 5. Relying on my experience and onsite observations, I am satisfied that these pavers have been lifted by that tree’s roots. Continued root growth is likely to cause further lifting. I noted that other areas of nearby paving are sunken, rather than raised. This is likely to result from rainfall falling from the carport roof, after Mr Mazurkiewicz removed the guttering over a year ago. I don’t believe the sunken areas of brick paving are caused by tree roots.

9. I am satisfied that Tree 5’s roots have lifted brick pavers, and will continue to do so. Preventing this would most reasonably be achieved by removing that tree.

10. I have considered the matters at s 12 of the Trees Act and find that removing Tree 5 is a reasonable solution to prevent further damage. I am not satisfied that Mr Mazurkiewicz informed the respondents about the damage, nor that they could have done anything to prevent it. They have not continued a known nuisance; therefore, I will not order any compensation for this damage. The paving can reasonably be lifted and re-laid, but that is a matter for Mr Mazurkiewicz.

11. The trees in the respondents’ front hedge were greater than five metres tall until they pruned them two weeks before the onsite hearing. Mr Mazurkiewicz submits that debris fell onto his roof, blocked his gutters and generally caused him nuisance. To access his carport properly he has had to prune overhanging branches, as he may under the common law right of abatement. The situation regarding debris from the trees is no more severe than many others considered by the Court, where the principle established in Barker v Kyriakides [2007] NSWLEC 292 has consistently been applied. I am not satisfied that debris from the trees has caused any damage, but if I were, no orders would be made on that element of the application.

Sunlight and views

12. Under the Pt 2A application, I must not make any orders unless I am satisfied that the respondents’ trees are severely obstructing sunlight to the applicant’s windows or views from his dwelling (s 14E(2)(a) of the Trees Act). It is not disputed that the trees are planted so as to form hedges. Until recently, the hedge in the respondents’ front garden was greater than 2.5 metres tall; the hedge in their back garden is over 5 metres tall.

Front hedge

13. The trees in the respondents’ front garden were greater than 5 metres tall until recently; they are now 2.4 metres tall. They are adjacent to Mr Mazurkiewicz’s carport, not his dwelling. Before the recent pruning, they may have blocked some morning sunlight to north-facing windows at the front of his dwelling, but only for a limited time. Winter sunlight would otherwise be available to those windows. The outlook across the boundary is not a principal outlook from his dwelling. There is no evidence before the Court to demonstrate that these trees cause a severe obstruction of either sunlight or views.

Rear hedge

14. Mr Mazurkiewicz submits that the viburnum hedge in the respondents’ back yard obstructs his view. That hedge is beyond his brick garage, more than 10 metres from the back of his dwelling. The hedge’s upper foliage blocks only a small part (I estimate less than 5%) of the outlook of the sky from the dwelling. It obstructs nothing else. This is not a severe obstruction.

Orders

15. The Court orders:

1. The Pt 2A application is refused.

2. The Pt 2 application is granted to the extent of the following orders.

3. Within 30 days of the date of these orders, the respondents, or a suitably qualified contractor engaged and paid for by the respondents, are to remove Tree 5, being the southernmost tree in the hedge in their front garden along their western boundary.

4. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 May 2024