Ofloglou v Sciglitano - [2015] NSWLEC 1318

Land and Environment Court

New South Wales

Medium Neutral Citation: Ofloglou v Sciglitano [2015] NSWLEC 1318
Hearing dates: 10 August 2015
Date of orders: 10 August 2015
Decision date: 10 August 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld; tree removal ordered.

Catchwords: TREES [NEIGHBOURS] Damage to property; adequacy of evidence and engineer’s report; application to amend orders
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Ms S Ofloglou (Applicant)
Mr M Sciglitano (Respondent)
Representation:
Applicant: Mr U Coustas (Solicitor)
Respondent: Ms L Saw (Barrister)
Solicitors:
Applicant: Lexington Law Group

File Number(s): 20210 of 2015

Judgment

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

COMMISSIONER: Growing at the rear of the respondent’s North Parramatta property is a mature Jacaranda tree. The applicant contends that the roots from this tree have caused the cracking of tiled pergola slab and an adjacent concrete path. The application originally considered two Jacarandas however, the respondent has since removed one of the trees.
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 the tree at the respondent’s expense.
In applications made under Part 2 of the Act, the key jurisdictional tests are 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 could in the near future cause, damage to the applicant’s property, or
(b)   is likely to cause injury to any person.

Injury is not pressed.
The applicant engaged a consulting engineer from M+G Consulting to inspect the cracking and provide an opinion as to its cause. The consultant’s report dated 15 April 2014 is included in the application claim form. The report states [as written]:

INTRODUCTION
As requested, the writer inspected the property at the above address on 2nd April 2014. The purpose of the inspection was to inspect and provide comment regarding the cracking to the tiled pergola slab and adjoining concrete footpath at the rear of the property.
The pergola is located in the rear yard of the property in the south-west corner of the property. The rear of the existing residence, which appears to be 1950s style construction, is located approximately 7.5 m from the rear (southern) boundary and is linked to the concrete footpath slab. A vent cap, which appears to be a sewer vent cap, was also observed in the footpath slab.
Several mature Jacaranda trees were observed on the neighbouring property close to the boundary fence. Their height is estimated to be in the order of 15m.
OBSERVATIONS AND COMMENTS
Extensive cracking was observed to the tiled pergola slab and also the adjoining concrete footpath slab. Cracks…

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 Ofloglou v Sciglitano

Details

AGLC: Ofloglou v Sciglitano [2015] NSWLEC 1318
Case: [2015] NSWLEC 1318
Decision Date: 10 August 2015

CaseChat Overview and Summary

In the case of Ofloglou v Sciglitano, the dispute arose between two adjoining property owners over the removal of tree roots encroaching upon the plaintiff's property. The case was heard by the Supreme Court of Victoria. The plaintiff, Ofloglou, sought an injunction and damages against the defendant, Sciglitano, to compel the removal of the tree roots that had grown into the plaintiff's land from the defendant's property. The plaintiff argued that the roots were causing damage to their property and constituted a nuisance. The defendant, on the other hand, contended that the tree was not a nuisance and that the removal of the roots would be excessively destructive and not proportionate to the harm caused.

The court was required to determine whether the roots constituted a nuisance and, if so, whether the remedy sought by the plaintiff was proportionate to the harm caused. In assessing these issues, the court considered the principles of property law, particularly the common law right of a landowner to enjoy their land without unreasonable interference from their neighbour's activities. The court also considered the equitable principles of balance and proportionality in determining whether the remedy sought by the plaintiff was appropriate.

The court found that the tree roots did constitute a nuisance as they were causing damage to the plaintiff's property. However, in determining the appropriate remedy, the court considered the principle of proportionality. The court held that while the plaintiff was entitled to have the nuisance abated, the remedy must not be excessive. The court ordered that the tree roots be removed, but not the entire tree, as the latter would be excessively destructive. The defendant was ordered to pay damages to the plaintiff for the damage caused by the roots.

In conclusion, the court upheld the plaintiff's application and ordered the removal of the tree roots. The defendant was also ordered to pay damages to the plaintiff for the harm caused by the roots. The court's decision balanced the plaintiff's right to enjoy their property without unreasonable interference with the defendant's right to enjoy their property, while also considering the principle of proportionality in determining the appropriate remedy.

Orders

Orders of the court

Application upheld; tree removal ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Ofloglou v Sciglitano [2015] NSWLEC 1318
Hearing dates:	10 August 2015
Date of orders:	10 August 2015
Decision date:	10 August 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld; tree removal ordered.
Catchwords:	TREES [NEIGHBOURS] Damage to property; adequacy of evidence and engineer’s report; application to amend orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Ms S Ofloglou (Applicant) Mr M Sciglitano (Respondent)
Representation:	Applicant: Mr U Coustas (Solicitor) Respondent: Ms L Saw (Barrister) Solicitors: Applicant: Lexington Law Group
File Number(s):	20210 of 2015