Kapsanis v Hoey

Land and Environment Court New South Wales Medium Neutral Citation: Kapsanis v Hoey [2015] NSWLEC 1192 Hearing dates:26 May 2015Decision date: 26 May 2015 Jurisdiction:Class 2Before: Galwey AC Decision: The application is dismissed Catchwords: Trees (Disputes Between Neighbours); damage to property; risk of injury; dividing fence; application dismissed. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Category:Principal judgmentParties: Spiro Kapsanis (Applicant) Mavis Hoey (Respondent) Representation: Spiro Kapsanis, litigant in person (Applicant) Timothy Tunbridge, solicitor (Respondent) File Number(s):20180 of 2015JudgmentThis decision was given as an extemporaneous decision. It has been revised and edited prior to publication.Background A single Oleander tree stands next to the boundary in a back garden in Kingsgrove. Along the boundary is a timber paling fence. Mr Kapsanis owns and lives at the neighbouring property that shares the boundary fence. Wishing to replace the fence, Mr Kapsanis has applied to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for the tree to be removed and a new fence erected along the boundary. He says tree removal is required as the stem of the tree encroaches over the boundary, preventing a new fence being built on the boundary. Mrs Hoey says the tree is on her land and that it has not damaged the fence. She does not seem to object to a new fence being built. Jurisdictional framework According to s 10(2) of the Trees...