Pearce v Karpathakis - [2024] NSWLEC 1665

Land and Environment Court

New South Wales

Medium Neutral Citation: Pearce v Karpathakis [2024] NSWLEC 1665
Hearing dates: 15 October 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1)   The application is granted to the extent of the following orders.
(2)   The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to near ground level within 60 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
(3)   The respondents are to give the applicant one week’s notice of the works in Order (2).
(4)   The applicant is to allow all access necessary for the works during reasonable hours of the day.
(5)   Within 90 days of the date of these orders the respondents are to plant on their property a tree that will reach at least 8 metres in height.
(6)   Within 90 days of the date of these orders the respondents are to engage a fencing contractor to repair or replace the Colourbond fence on the common boundary shared with the applicant so that the fence is upright, straight and sturdy, and is a sufficient dividing fence consistent with similar fencing on the respondents’ property.
(7)   The exhibits are returned, other than Exhibits A and B.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree has caused damage – compensation – who should pay for tree works – orders for tree removal

Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12

Cases Cited:
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Texts Cited:
Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category: Principal judgment
Parties: Dean Pearce (Applicant)
George Karpathakis (First Respondent)
Gail Karpathakis (Second Respondent)
Representation: D Pearce (Self-represented) (Applicant)
M Karpathakis and A Goult (Agents) (Respondents)

File Number(s): 2024/236646
Publication restriction: Nil

Judgment

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

Background

COMMISSIONER: Dean Pearce has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the owners of the neighbouring Woolooware property, George and Gail Karpathakis (the respondents), to remove a tree on their land, to repair a dividing fence, and to pay him compensation for property damage.
At the onsite hearing, the Court inspected the tree and relevant parts of both properties. The applicant was self-represented; the respondents were represented by their son Michael Karpathakis and daughter Anthea Goult.

Framework for this decision

Pursuant to s 7 of the Trees Act, Mr Pearce applied to the Court for orders to remedy and prevent damage to his property as a consequence of a tree on adjoining land. He wants…

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.

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Details

Case: [2024] NSWLEC 1665
Decision Date: 15 October 2024

CaseChat Overview and Summary

In the matter of Pearce v Karpathakis, the dispute arose between neighbours over the condition and removal of a tree that had grown into the applicant’s property. The case was heard in the Local Court of New South Wales, where the applicant sought relief from the tree's encroachment and subsequent damage to their property. The respondents, who owned the tree, contested the necessity and scope of the removal and replacement works.

The primary legal issues before the court were whether the tree constituted a nuisance, the appropriate method for its removal, and the obligations of the respondents to mitigate any harm caused by the tree. The court had to determine whether the removal of the tree to near ground level, as proposed by the applicant, was reasonable and necessary to resolve the nuisance. Additionally, the court needed to decide on the adequacy of the proposed replacement tree and the necessity for repairing or replacing the shared fence.

The court found that the tree indeed constituted a nuisance as it had encroached upon the applicant’s property and caused damage. The judge concluded that the proposed method of removing the tree to near ground level was reasonable and necessary to resolve the nuisance. The court also ruled that the respondents had to plant a replacement tree that would reach at least 8 metres in height and repair or replace the shared fence to ensure it was upright, straight, and sturdy. The court ordered that the works be carried out by suitably qualified professionals and that the applicant be given reasonable notice of the works. Finally, the court granted the application in part, issuing specific orders for the removal, replacement, and repair works to be completed within the prescribed timeframes.

Orders

Orders of the court

The Court orders:

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

(2) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to near ground level within 60 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondents are to give the applicant one week’s notice of the works in Order (2).

(4) The applicant is to allow all access necessary for the works during reasonable hours of the day.

(5) Within 90 days of the date of these orders the respondents are to plant on their property a tree that will reach at least 8 metres in height.

(6) Within 90 days of the date of these orders the respondents are to engage a fencing contractor to repair or replace the Colourbond fence on the common boundary shared with the applicant so that the fence is upright, straight and sturdy, and is a sufficient dividing fence consistent with similar fencing on the respondents’ property.

(7) The exhibits are returned, other than Exhibits A and B.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pearce v Karpathakis [2024] NSWLEC 1665
Hearing dates:	15 October 2024
Date of orders:	15 October 2024
Decision date:	15 October 2024
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders. (2) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to remove the tree to near ground level within 60 days of the date of these orders. These works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. (3) The respondents are to give the applicant one week’s notice of the works in Order (2). (4) The applicant is to allow all access necessary for the works during reasonable hours of the day. (5) Within 90 days of the date of these orders the respondents are to plant on their property a tree that will reach at least 8 metres in height. (6) Within 90 days of the date of these orders the respondents are to engage a fencing contractor to repair or replace the Colourbond fence on the common boundary shared with the applicant so that the fence is upright, straight and sturdy, and is a sufficient dividing fence consistent with similar fencing on the respondents’ property. (7) The exhibits are returned, other than Exhibits A and B.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –whether neighbouring tree has caused damage – compensation – who should pay for tree works – orders for tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006, ss 7, 9, 10, 12
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)
Category:	Principal judgment
Parties:	Dean Pearce (Applicant) George Karpathakis (First Respondent) Gail Karpathakis (Second Respondent)
Representation:	D Pearce (Self-represented) (Applicant) M Karpathakis and A Goult (Agents) (Respondents)
File Number(s):	2024/236646
Publication restriction:	Nil