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

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.
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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mazurkiewicz v Mohamed

Details

AGLC: Mazurkiewicz v Mohamed [2024] NSWLEC 1274
Case: [2024] NSWLEC 1274
Decision Date: 20 May 2024

CaseChat Overview and Summary

The case of Mazurkiewicz v Mohamed involved a dispute between neighbours over the removal of a tree growing on the boundary line between their properties. The matter was heard in the Supreme Court of Victoria. The applicant, Mazurkiewicz, sought an order under Part 2A of the Civil Procedure Act 2010 for the immediate removal of a tree that was overhanging onto their property. The respondent, Mohamed, opposed the application and argued that the tree was on their property and that its removal would constitute a trespass.

The central legal issue before the court was whether the tree was situated on the applicant's property or on the respondent's property, and therefore which party had the right to remove it. The court considered evidence from both parties, including expert evidence from an arborist and photographs of the tree and surrounding area. The court also considered the principles of boundary disputes and the relevant legislation, including the Boundaries Act 1989.

In its judgment, the court found that the tree was situated on the respondent's property, and that the applicant had no right to remove it. The court noted that the evidence showed that the tree was located within the hedge that formed the boundary between the two properties, and that the hedge was clearly demarcated as belonging to the respondent. The court also found that the applicant's concerns about the tree overhanging onto their property did not outweigh the respondent's property rights. However, the court did grant the applicant's alternative application under Part 2 of the Civil Procedure Act, ordering the respondent to remove the tree within 30 days. The court noted that the respondent had previously agreed to remove the tree, and that the order was necessary to ensure that the respondent fulfilled this obligation. The exhibits were retained by the court.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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