Tziotis v Tetoros
[2013] NSWLEC 1247
•20 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Tziotis & anor v Tetoros & anor [2013] NSWLEC 1247 Hearing dates: 20 December 2013 Decision date: 20 December 2013 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) The application is upheld.
(2) The respondents are to remove the temporary fence along this ~10 metre section of the common boundary by 7:00 a.m. tomorrow, the 21st December, to allow subsequent works.
(3) The applicants are to allow access for the works in (2) and may supervise those works if they wish.
(4) By 5:00 p.m. on Monday 23rd December the applicants are to remove the remaining footing and brickwork along this ~10 metre section of the common boundary to a depth sufficient to allow a footing for a brick wall to be constructed.
(5) The respondents are to allow access for the works in (4) and may supervise those works if they wish.
(6) The applicants are to have this section of the common boundary professionally surveyed and are to provide a copy of the survey to the respondents within 30 days of the date of these orders and prior to the works in (9) being carried out. If the applicants have a recent survey they can use they are not required to undertake a further survey and they are to provide a copy of this to the respondents.
(7) The respondents are to have the stumps of the palms adjacent to this section of the boundary ground out and remove any material from the garden bed adjacent to the boundary, sufficient to allow the wall to be built, within 30 days of the date of these orders and after the works in (4).
(8) The applicants are to allow access for the works in (7) and may supervise those works if they wish.
(9) The applicants are to construct, or engage and pay for a contractor to construct, a single skin brick wall supported by piers as required by current standards to a maximum height of 1.8 metres (measured above ground level on the applicants' side of the boundary) along this ~10 metre section of the common boundary, and no higher than the second-top course of bricks of the boundary brick pillar where the wall meets that pillar, within 60 days of the date of these orders and after the works in (7).
(10) The respondents are to allow access for the works in (9) and may supervise those works if they wish.
(11) Any temporary fence the respondents require for containing their dog until the above works are completed is to be entirely within their property and must be clear of the area of works so that works are not impeded.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; removal of stumps; rebuilding of boundary wall Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: APPLICANTS
RESPONDENTS
George Tziotis
Maria Tziotis
Mario Tetoros (First Respondent)
Anna Tetoros (Second Respondent)Representation: APPLICANTS
George Tziotis and Maria Tziotis(Applicants in person)RESPONDENTS
RESPONDENTS
Mario Tetoros(Respondent in person)
APPLICANT
File Number(s): 20832 of 2013
Judgment
Background
Mr and Mrs Tziotis and Mr and Mrs Tetoros have lived next door to each other for several years. Mr and Mrs Tziotis ('the applicants') have two adult children with disabilities. Mr and Mrs Tetoros ('the respondents') have a young dog. Several palms grew on the respondents' land adjacent to the common boundary. Most of the common boundary has colourbond fence along it, and the applicants' entire back garden is surrounded by colourbond fence, except for a section approximately 10 metres long on the common boundary, where there is no fence. That section of fence was brick. There used to be an adjacent carport. The brick wall was removed a few years ago.
The applicants applied to the Court for orders under the Trees (Disputes Between Neighbours) Act 2006 for removal of three palms. At the hearing the application was amended to include orders for replacing the section of boundary wall that was damaged by the palms. The respondents expressed their willingness for the hearing to proceed on that basis.
The respondents recently removed the palms, leaving their stumps to a short height above ground level. They have placed a low temporary fence along the boundary, roughly, to contain their dog.
Based on the photos and on inspection of the extent of the palms' stumps and roots, which have pushed across the boundary, I am satisfied that the palms were at least a cause of damage to the brick wall. The respondent did not give evidence to the contrary.
A new boundary fence is required, as agreed by both parties, to contain the dog, for privacy and for all the usual reasons that people want boundary fences. The parties disagree on the type of fence.
The applicants want a brick wall similar to what existed previously. They are willing to pay its full cost.
The respondents want a 1.8 metre colourbond fence consistent with the adjoining section of boundary fence. They are willing to pay 50% of its cost.
According to the applicants, the respondents' dog escapes into their property. The applicants want privacy for their children while they are in the rear garden of their property. The situation is such that a quick resolution to the matter of the boundary fence is desirable for both parties.
As I am satisfied that the respondents' trees have caused damage to the applicants' property, being their share of the boundary wall, according to s 9 of the Act the Court can make orders to remedy the damage.
Acknowledging the presence of the brick wall on this section of the boundary previously, I find the applicants' expectation of replacement with the same to be reasonable, especially when the neighbouring palms caused damage to that wall. I also note their generosity in offering to pay the entire cost of building a new boundary wall.
Some preparatory works are required to be undertaken before the wall can be built, to ensure it is on the boundary and to facilitate its construction. The timeframes allowed in the orders were agreed as adequate by the parties during the hearing.
Therefore, the orders of the Court are:
(1) The application is upheld.
(2) The respondents are to remove the temporary fence along this ~10 metre section of the common boundary by 7:00 a.m. tomorrow, the 21st December, to allow subsequent works.
(3) The applicants are to allow access for the works in (2) and may supervise those works if they wish.
(4) By 5:00 p.m. on Monday 23rd December the applicants are to remove the remaining footing and brickwork along this ~10 metre section of the common boundary to a depth sufficient to allow a footing for a brick wall to be constructed.
(5) The respondents are to allow access for the works in (4) and may supervise those works if they wish.
(6) The applicants are to have this section of the common boundary professionally surveyed and are to provide a copy of the survey to the respondents within 30 days of the date of these orders and prior to the works in (9) being carried out. If the applicants have a recent survey they can use they are not required to undertake a further survey and they are to provide a copy of this to the respondents.
(7) The respondents are to have the stumps of the palms adjacent to this section of the boundary ground out and remove any material from the garden bed adjacent to the boundary, sufficient to allow the wall to be built, within 30 days of the date of these orders and after the works in (4).
(8) The applicants are to allow access for the works in (7) and may supervise those works if they wish.
(9) The applicants are to construct, or engage and pay for a contractor to construct, a single skin brick wall supported by piers as required by current standards to a maximum height of 1.8 metres (measured above ground level on the applicants' side of the boundary) along this ~10 metre section of the common boundary, and no higher than the second-top course of bricks of the boundary brick pillar where the wall meets that pillar, within 60 days of the date of these orders and after the works in (7).
(10) The respondents are to allow access for the works in (9) and may supervise those works if they wish.
(11) Any temporary fence the respondents require for containing their dog until the above works are completed is to be entirely within their property and must be clear of the area of works so that works are not impeded.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 03 January 2014
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