Land and Environment Court New South Wales

• Medium Neutral Citation: Lascaridis v Hamad [2014] NSWLEC 1173
• Hearing dates: 20 August 2014
• Decision date: 20 August 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part: see orders at paragraph 28

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to a dividing fence; whether a survey of the boundary is required; application upheld in part; orders for boundary survey; orders for tree removal, fence removal and fence construction.
• Legislation Cited: Civil Procedure Act 2005; Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Awad v Hardie [2010] NSWLEC 1213; Awad v Hardie (No 2) [2010] NSWLEC 1258; Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119
• Category: Principal judgment
• Parties: C Lascaridis (Applicant); M Hamad (Respondent)
• Representation: Simpson Freed Lawyers (Applicant); Fortis Law Group (Respondent); Michael Corbett-Jones, solicitor (Applicant); Zak Tayyar, solicitor (Respondents)
• File Number(s): 20448 of 2014

Judgment

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

The application

1 Mr Lascaridis (the applicant) has a residential property in Padstow with colourbond fencing along some boundaries, but along most of the length of his northern boundary is a somewhat dilapidated timber paling fence held up in places by additional supports. There are several trees, none particularly large, on the other side of the fence. This is the common boundary he shares with Ms Hamad (the respondent), who owns and resides at the property to his north.

2 Mr Lascaridis first brought the fence's condition to Ms Hamad's attention in 2000. Again in 2013 he discussed the need for fence replacement with Ms Hamad, pointing out that some trees were pushing over the fence and would need to be removed to replace the fence. After some discussion and offers, they were unable to agree on a solution that would satisfy them both and Mr Lascaridis applied to Sutherland Local Court for orders pursuant to the Dividing Fences Act 1991 (the Fences Act).

3 In June of this year Mr Lascaridis then filed an application with the Land and Environment Court (the Court) seeking orders pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for removal of trees causing damage to the dividing fence. In that application and in a subsequent Notice of Motion he also sought, pursuant to s 13A of the Fences Act, to have his fence application transferred from Sutherland Local Court to the Land and Environment Court, so it could be determined simultaneously with the tree application. The fence application was transferred to the Land and Environment Court on 7 August.

The onsite hearing

4 At this morning's onsite hearing the fence and trees were viewed from within both properties. The dividing fence runs east-west. At the front of the properties is an approximately 10-metre section of low brick wall along the common boundary extending from the front boundary to a point near the front corner of Ms Hamad's dwelling. From there, the timber paling fence extends along the remaining length of the common boundary, perhaps some 25 metres, to the rear corner of Mr Lascaridis' property.

5 The fence has clearly been here for many years: some boards are rotting; most of the capping boards atop the fence have rotted; and the fence is displaced, in places leaning significantly into Mr Lascaridis' property. If not for several extra supports installed by Mr Lascaridis on his side, it is likely the displacement would be significantly greater.

6 There are several trees along this section of the boundary, all on Ms Hamad's side of the fence, though not necessarily entirely on her property. Near the western end of the timber paling fence is an Umbrella Tree. Several metres along is another. Several metres beyond that is a Hills Fig. Near the Fig is the remaining stem of a dead tree fern. Closer to the eastern end of the common boundary and near the rear corner of Ms Hamad's dwelling is a Lilly Pilly.

7 It was observed that, and as the applicant claims, growth of roots and root buttresses of the two Umbrella Trees and the Hills Fig have caused displacement of the bottom of the fence. It did not appear to me that the Lilly Pilly has displaced the fence, although the applicant contends that root growth of all the trees has generally displaced fence posts and contributed to its lean.

8 This morning Mr Corbett-Jones, solicitor for Mr Lascaridis, raised for the first time the issue regarding the location of the common boundary. The low brick wall along the front section of the common boundary does not align with the timber paling fence. Being significantly newer, it seems more likely that the brick wall was constructed along the boundary. However there has been no recent survey and the issue is perhaps further confused by the brick pillar of a gateway adjacent to Ms Hamad's dwelling. The pillar's southern face is aligned with neither the brick wall nor the timber fence.

9 It was clear to all at the hearing that the two Umbrella Trees and the Lilly Pilly are located on Ms Hamad's property. However the same cannot be said for the Hills Fig, the base of which appears to straddle a line sighted along and continuing from the low brick wall.

Is a survey required to determine where the Fig is principally located?

10 In previous matters where the Court could not be satisfied that a tree was situated principally on the respondent's land (s 4(3) of the Act) the Court has given directions for a survey to be undertaken (for instance, Awad v Hardie [2010] NSWLEC 1213 and Awad v Hardie (No 2) [2010] NSWLEC 1258) or has dismissed the application (as in Giroud & Anor v Sharif & Anor [2014] NSWLEC 1119).

11 Having considered the application, I do not find that a survey is necessary for establishing the question of jurisdiction (although it will be ordered for other reasons). The Trees Act, buoyed by s 56(1) of the Civil Procedure Act 2005, aims to "facilitate the just, quick and cheap resolution of the real issues in the proceedings." Mr Lascaridis wants the matter resolved as quickly as possible, as he has been seeking an outcome for some time. Ms Hamad wishes the matter to be resolved a cheaply as possible due to financial hardship.

12 I am satisfied that two Umbrella Trees that are clearly on Ms Hamad's property have damaged the fence, which is partly property on Mr Lascaridis' land. This engages the Court's jurisdiction over these two trees and the sections of fence they have damaged. It follows that this then permits the making of orders under the Fences Act (see s 13A) for fencing works beyond the section damaged by these two trees. At s 3 of the Fences Act, "fencing work" is defined and includes (my emphasis):

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose.

13 Whatever is the exact location of the common boundary, the Hills Fig will require removal for the fence to be replaced. Its base straddles all possible locations of the boundary and its stem leans in such a way that it would prevent a fence being constructed along any of the possible alignments of the common boundary. Within the framework of the Fences Act, it matters not whose land the Hills Fig is on - it may be removed for the purpose of reconstructing the dividing fence. For the purposes of the Trees Act, the location of the Hills Fig would be relevant with regards to the jurisdictional test: orders would not be made unless the tree is located principally on the respondent's land. However in this case the Court's jurisdiction is enlivened by other trees that are on the respondent's land and the test does not need to be applied to the Hills Fig, the removal of which can be ordered under the Fences Act.

14 The location of the Hills Fig would also be relevant to the Trees Act if Mr Lascaridis were claiming compensation for any damage caused by that tree, or asking for Ms Hamad to pay for its removal and repair of any damage it has caused. However he is not. He merely seeks the works to be done and for the parties to share the costs. Regarding the Hills Fig, such a cost-sharing arrangement would be typical of orders for fencing works under the Fences Act. Mr Lascaridis' willingness to share the costs of removing the Umbrella Trees, which are on Ms Hamad's property, is generous.

Submissions regarding the nature of orders

15 Mr Lascaridis submits that the Umbrella Trees and the Hills Fig need to be removed to allow fence reconstruction and to avoid future damage to the dividing fence. He says the Lilly Pilly may need to be pruned. He acknowledges that the Lilly Pilly provides amenity for Ms Hamad at the rear of her dwelling, but argues that the other trees provide few benefits.

16 Mr Lascaridis says the boundary should be surveyed so that the parties can be satisfied that the new fence is located on the boundary.

17 Mr Lascaridis would like a colourbond fence 1.8 metres tall, cream in colour.

18 Mr Lascaridis says the works should be done as soon as possible and that the costs should be shared equally between the parties.

19 Ms Hamad acknowledges that the fence is dilapidated but says financial hardship limits her ability to afford the works.

20 Ms Hamad says she does not want trees removed unnecessarily.

21 Ms Hamad says she does not mind what material is used for the fence, or what colour it is, but prefers the cheapest possible outcome.

22 Ms Hamad agrees that the fence should be on the boundary and that a survey is required to achieve this.

Findings regarding appropriate orders

23 I find that the two Umbrella Trees, the Hills Fig and the remaining stem of a dead tree fern need to be removed to facilitate replacement of the boundary fence and to avoid damage to the new fence. On my assessment the fence could be reconstructed without interfering with the Lilly Pilly.

24 A survey is required to ensure the fence is constructed along the common boundary.

25 Mr Lascaridis' preferences regarding fencing material and colour are appropriate and there is unlikely to be a significantly cheaper yet suitable option.

26 The costs of the survey and fencing works should be shared equally between the parties. As this is the case, there is no need to separate out the costs of works for tree removal or for sections of the fence damaged by trees.

27 Ms Hamad's financial circumstances are to be considered. Mr Lascaridis will pay for the works and Ms Hamad will pay to him her share in two instalments.

Orders

28 Therefore the Court makes the following orders.

(1) The application is upheld in part.

(2) The applicant is to engage and pay for a registered surveyor to survey and mark the common boundary between the applicant's property and the respondent's property.

(3) The survey is to be completed within 21 days of the date of these orders.

(4) The applicant is to provide the respondent with a copy of the survey plan within 28 days of the date of these orders.

(5) Within 14 days of the date of these orders the applicant and the respondent are each to obtain two quotes from suitably qualified contractors to:

(a) remove the two Umbrella Trees, the Hills Fig and a dead tree fern stem, and grind out or otherwise remove their stumps;

(b) remove the timber paling fence along the length of the common boundary; and

(c) construct a 1.8-metre cream colourbond fence along the common boundary, from the end of the low brick wall some 10 metres from the property frontage, to the eastern end of the common boundary where it abuts an existing colourbond fence.

(6) Within 21 days of the date of these orders the parties are to swap quotes and select the cheapest quote.

(7) The applicant is to engage and pay for the contractor that provided the cheapest quote, or alternatively his preferred contractor, to carry out the works as described at (5) and as quoted. If the applicant engages a contractor other than the cheapest the applicant will bear the additional expense.

(8) The works described at (5) are to be completed within 60 days of the date of these orders.

(9) Within 14 days of the completion of the works described at (5) the applicant is to provide to the respondent receipted copies of the paid invoice for the boundary survey and the paid invoice for the fencing works.

(10) Within 30 days of receiving the two receipted invoices the respondent is to pay the applicant 25% of the amount in the cheapest quote for the fencing works (from (5)) and 25% of the cost of the boundary survey.

(11) Within 60 days of receiving the two receipted invoices the respondent is to pay the applicant a further 25% of the amount in the cheapest quote for the fencing works (from (5)) and a further 25% of the cost of the boundary survey.

____________________________

D Galwey

Acting Commissioner of the Court

Amendments

04 September 2014 - typographical error'bought' changed to 'brought'
Amended paragraphs: 2

Decision last updated: 04 September 2014