The Owners - Strata Plan 46498 v Evagelakos

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners – Strata Plan 46498 v Evagelakos [2021] NSWLEC 1509

Hearing dates:

11 May 2021

Date of orders:

1 September 2021

Decision date:

01 September 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [38]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to boundary fence – bamboo – madeira vine – whether the entire fence needs replacing – whether bamboo needs removing to prevent further damage – removal of madeira vine and bamboo – replacement of boundary fence

Legislation Cited:

Dividing Fences Act 1991, s 13A

Noxious Weeds Act 1993

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 9, 10, 12

Trees (Disputes Between Neighbours) Regulation 2019, cl 4

Texts Cited:

Parramatta City Council, ‘Weed Control Class 4 Management Plan’, (2006)

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, (2016)

Category:

Principal judgment

Parties:

The Owners – Strata Plan 46498 (Applicant)
Kalliopi Evagelakos (Respondent)

Representation:

Counsel
T Bacon (Solicitor) (Applicant)
T Kallianiotis (Solicitor) (Respondent)

Solicitors
Strata Title Lawyers (Applicant)
A Plus Legal (Respondent)

File Number(s):

2020/361816

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: A wooden paling fence extends along the common boundary shared by The Owners – Strata Plan 46498 (‘the applicant’) and Kalliopi Evagelakos (‘the respondent’). The fence is serviceable in places, but not in others, where it is affected by age, weather, moisture and vegetation. The fence extends along the entirety of Ms Evagelakos’ boundary. The fence extends along some, but not all, of the applicant’s north-eastern boundary, where it forms the rear boundary of several units, enclosing their courtyard gardens. Some of these gardens are relatively clear of vegetation, some have trees and shrubs. For a significant length of this fence, Ms Evagelakos has tall rhizomatous (spreading) bamboo (Phyllostachys sp.) (the bamboo’) growing on her side of the fence. It was growing here when she purchased her property, and she appreciates the privacy it provides. It forms a tall screen between her garden and the units on the applicant’s property.

2. Madeira vine (Anredera cordifolia) (‘the madeira vine’) has grown on and amongst other vegetation, including Ms Evagelakos’ bamboo. Some of the vine has been killed – dead foliage remains visible in the bamboo and in other trees and shrubs – while some live madeira vine remains.

3. The applicant 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 respondent to remove at her expense the bamboo and madeira vine; the respondent to instal a root barrier along the boundary to prevent further damage; the fence to be replaced along the entirety of the common boundary, with costs shared evenly by the parties; and, costs.

4. The applicant seeks these orders on the basis that the bamboo and madeira vine have damaged parts of the fence. The applicant is of the view that the vine has…