Land and Environment Court New South Wales

• Medium Neutral Citation: Kanagias v Mahajan & ors [2014] NSWLEC 1020
• Hearing dates: 12 February 2014
• Decision date: 12 February 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; maintenance; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Freeman v Dillon [2012] NSWLEC 1057; Hinde v Anderson and anor [2009] NSWLEC 1148; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANT; Ken Kanagias; RESPONDENTS; Shirish Mahajan (First Respondent); Maya Mahajan (Second Respondent); Vikrant Mahajan (Third Respondent)
• File Number(s): 20891 of 2013

Judgment

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

The applicant wants neighbouring trees removed and pruned

1 Mr Kanagias has lived at his Penshurst property for over 30 years. A driveway running alongside his property provides access to four properties, each of which owns a quarter of the driveway with a Right of Way agreement to share the driveway. Two rows of Italian Cypress trees line the driveway, one either side. Mr Kanagias claims that the row of trees along his boundary is causing damage to his property. The strip of land on which those trees grow is part of the property owned by the three respondents, the Mahajans.

2 Mr Kanagias has made an application under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for most of the trees - those between his garage and the street - to be removed and the remainder of the trees to the rear of his garage to be pruned to fence height.

3 Mr Kanagias says the trees' roots are damaging his paved driveway, causing cracks in the mortar. He says they have caused displacement of the colourbond fence on the common boundary. He says sap falls from the overhanging branches onto his driveway, which it stains, and prevents him parking cars there, as they would be damaged.

4 Mr Kanagias says debris from the trees, including foliage and seed cones, falls on the dwelling, garage and carport roofs, blocking gutters and downpipes and thereby causing damage. He says that debris also blocks the drain at the front of his garage. He says the maintenance required to clean these structures is more than should be expected.

5 Mr Kanagias is also concerned that, with electricity wires running through the canopies of trees on the other side of the driveway, all of the trees present a fire hazard as they are highly flammable.

6 Mr Kanagias says the trees have caused damage and, if nothing is done, are likely to cause more damage in future.

The tree owners want the trees to remain

7 The Mahajans see no need to remove the trees. They say that other factors are likely to cause or contribute to cracking of the driveway, such as natural ground movement, a lack of expansion joints in the driveway, roots from a large street tree that was recently removed, or the weight of a large truck that they say is sometimes parked in the driveway.

8 The Mahajans say other factors are also likely to be causing the fence buckling, such as earth that has been placed against a section of fence in the applicant's rear garden, the age and construction of the fence, and natural ground movement.

9 The Mahajans say they understand Mr Kanagias' issue with the sap and debris falling from the trees but say the trees provide many benefits, including shade and amenity, and their removal would be an extreme response to this issue.

10 They say if the trees are dangerous in any way they would want to take any action to prevent the danger.

11 Following recent discussions with Mr Kanagias, the Mahajans got their gardener to prune some of the branches that were overhanging the common boundary. They say they are willing to do this in future as necessary.

Findings regarding the issues raised

12 The small cracks in the mortar between the driveway pavers are less than one millimetre wide and the surface is not disrupted. They are so minor at present that, even if I were to regard them as damage, I would not make any orders on these grounds. Furthermore, I am not sufficiently satisfied, to the extent required by the Act, that the cracks are caused by Cypress roots rather than roots from the street tree that was removed recently. I note that the respondents' concrete driveway, which is more than 40 years old and has a row of Cypress trees either side, is not cracked.

13 Regarding the fence, I am also not sufficiently satisfied, to the extent required by the Act, that its buckling is caused by tree roots. It is a 20-year-old colourbond fence with several areas of displacement or buckling along its length. This may be due to a number of factors, including its age, its construction quality or, in the rear garden of the applicant's property, earth placed against the fence. On the evidence before me I cannot be satisfied that damage is from tree roots and so cannot make orders on these grounds. If the parties wish to repair the fence this is a matter to be resolved between themselves.

14 Regarding the debris and sap that falls from the trees: while I observed leaf litter and seed cones on roofs, in gutters and in drains I did not see that this was causing damage to the property. Perhaps staining of these structures, and sap stains on the driveway, could be regarded as damage. Blocked gutters and downpipes may lead to water damage. Should such damage be considered to be caused by the tree, as the applicant suggests, I turn to the principle expressed by the Court in Barker v Kyriakides [2007] NSWLEC 292 where, at 20, the Commissioners stated:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

I see no reason to veer from that principle here, as these are common garden trees, neither excessively large nor growing in an unreasonable location. Therefore I would not make any orders based on debris falling from the Cypress.

15 Regarding the risk of fire, there has been no damage caused here by fire but I will consider the future risk in light of Fakes C's discussion of a similar issue in Freeman v Dillon [2012] NSWLEC 1057 at 84-86. Damage caused by fire is not damage caused by trees and would not enliven the Court's jurisdiction under the Trees Act. Burning branches that fall may cause damage, however I note that the wires that pass through the tree canopies on the far side of the driveway are insulated and I am not satisfied that any such damage is likely in the near future.

16 Based on the above, I find that the trees have not caused and are not causing damage to the applicant's property to any extent that would warrant the making of orders to interfere with the trees. I also consider it unlikely that the trees will cause damage in the near future. The Court has consistently regarded the near future to be a period of around 12 months (see Yang v Scerri [2007] NSWLEC 592).

17 Based on the foregoing, no orders will be made and the application is dismissed. I note that the Mahajans are well aware of Mr Kanagias' concerns regarding the trees. Should circumstances change Mr Kanagias may reapply to the Court, as explained in Hinde v Anderson and anor [2009] NSWLEC 1148.

Orders

(1) The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 12 February 2014