Yan v Khanaly

[2023] NSWLEC 1006

Land and Environment Court

New South Wales

Medium Neutral Citation:

Yan v Khanaly [2023] NSWLEC 1006

Hearing dates:

7 October 2022

Date of orders:

10 January 2023

Decision date:

10 January 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to roofs and sewer - leaves, fruit and small sticks falling onto roofs and yard – tree was there first

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 10, 12

Cases Cited:

Ball v Bahramali & Anor [2010] NSWLEC 1334

Barker v Kyriakides [2007] NSWLEC 292

McPherson v Lake [2017] NSWLEC 1081

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Standards Australia, AS4373-2007: Pruning of Amenity Trees

Land and Environment Court of NSW: Annotated Trees(Disputes Between Neighbours Act), 2013

Category:

Principal judgment

Parties:

Jing Wen Yan (Applicant)
Siamak Khanaly (First Respondent)
Neda Karimi (Second Respondent)

Representation:

J Yan (Self-represented) (First Applicant)
S Khanaly (Self-represented) (First Respondent)
N Karimi (Self-represented) (Second Respondent)

File Number(s):

2022/198630

Publication restriction:

Nil

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Jing Wen Yan, relating to a large Corymbia citriodora (Lemon Scented Gum) (Tree 1) and a Cinnamomum camphora (Camphor laurel) (Tree 2) located within an adjacent neighbouring property.

Background

2. Mr Yan, (the applicant), and Mr Khanaly and Ms Karimi, (the respondents), share a north – south boundary at the rear of their respective properties in Castle Hill. Mr Yan has lived at his property since 1994, while the respondents have occupied their property since 2020.

3. The applicant has raised concerns about the respondents’ trees growing near the common rear boundary, with branches encroaching over his property. Mr Yan claims that these branches are likely to break, or that the trees could uproot in storms and cause damage to his house and other property.

4. The applicant also submitted that roots from the trees had blocked his sewer pipes in the past, most recently in 2018. He claimed no compensation for the plumbing works required to clear this blockage, or install a new inspection pipe, but he submitted “avoidance of future sewer pipe damage” as a basis to justify the trees’ removal.

5. Mr Yan proposed that the Court make the following orders:

1. The respondent is solely liable for any future damages to our (families’) house’s roof, roofed deck and shed caused by their trees.

2. The respondent will remedy any damages caused to our property by their trees. The respondent must hold a Tree Insurance policy cover at all times, of at least $100,000, and increasing yearly according to inflation. The insurance policy terms must be precisely defined and agreed upon by both applicant and respondent.

3. The respondent will prune the trees at least once a year, to remove branches overhanging our house or potentially…