Pathikulangara & anor v Davidson & anor [2014] NSWLEC 1163

Pathikulangara & anor v Davidson & anor [2014] NSWLEC 1163

The Court's jurisdiction was engaged because low overextended limbs and dead branches of the respondents' tree were likely in the near future to fail and damage the applicants' property, and might cause injury. The tree was structurally sound and did not need removal, but risk could be reduced by pruning and maintained by biennial pruning. Compensation for broken roof tiles was not ordered because the Court was not satisfied that the observed broken tiles were caused by the tree, and even if branches had caused damage, the respondents had not been made fully aware of the issue earlier and had been denied an opportunity to prevent it. As the tree grew on the respondents' land and the...

Jurisdiction
Australia
Judgment Date
14 August 2014
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Regular Pruning and Compensation for Broken Roof Tiles / Principal Judgment After Onsite Hearing
Outcome
The application was upheld; pruning orders were made and compensation for broken roof tiles was not awarded.
Legal Topics
['damage to Neighbouring Property From Tree Branches' 'risk of Injury From Tree Branches' 'orders for Pruning' 'compensation for Broken Roof Tiles' 'costs of Tree Maintenance']
['trees Disputes Between Neighbours' 'property' 'environmental and Planning Law'] ['damage to Neighbouring Property From Tree Branches' 'risk of Injury From Tree Branches' 'orders for Pruning' 'compensation for Broken Roof Tiles' 'costs of Tree Maintenance']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 Seeking Orders for Regular Pruning and Compensation for Broken Roof Tiles / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicants made reasonable efforts to reach agreement with the respondents and gave notice of the application as required by the Trees (Disputes Between Neighbours) Act 2006.' "Whether the tree caused damage to the applicants' property by breaking garage roof tiles." "Whether the tree was likely in the near future to cause damage to the applicants' property." 'Whether the tree was likely to cause injury to any person.' 'What pruning, compensation and cost orders were appropriate.']

Ratio Decidendi

The Court's jurisdiction was engaged because low overextended limbs and dead branches of the respondents' tree were likely in the near future to fail and damage the applicants' property, and might cause injury. The tree was structurally sound and did not need removal, but risk could be reduced by pruning and maintained by biennial pruning. Compensation for broken roof tiles was not ordered because the Court was not satisfied that the observed broken tiles were caused by the tree, and even if branches had caused damage, the respondents had not been made fully aware of the issue earlier and had been denied an opportunity to prevent it. As the tree grew on the respondents' land and the...

Court Disposition

The application was upheld; pruning orders were made and compensation for broken roof tiles was not awarded.

Orders

  • ['The application is upheld.' 'Within 60 days, the respondents are to engage and pay for a suitably qualified arborist, minimum AQF level 3 with appropriate insurances, to prune the tree by removing Limb 1 and Limb 4 to their branch collars at the stem, reducing Limb 2 and Limb 5 to suitable lateral branches,...