Vroharis & anor v Austin & anor [2016] NSWLEC 1324

Vroharis & anor v Austin & anor [2016] NSWLEC 1324

The Court was not satisfied that leaf litter or debris had caused or was likely in the near future to cause damage to the applicants' gutters or other property, nor that most trees were likely to cause injury; ordinary tree debris is not actionable without property damage and generally does not warrant intervention. However, stems of trees 9 and 11 were growing against the timber retaining wall and causing deflection, with further damage likely if left to grow, so limited orders for their removal were justified.

Jurisdiction
Australia
Judgment Date
09 August 2016
Procedural Posture
Class 2 Tree Dispute Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders
Outcome
Application allowed in part; limited orders made for removal of stems from trees 9 and 11, with the remaining pruning application and compensation claim dismissed.
Legal Topics
['damage to Property' 'risk of Injury' 'leaf Litter and Tree Debris' 'retaining Wall Damage' 'compensation for Gutter Replacement']
['tree Disputes' 'neighbour Disputes' 'property Damage'] ['damage to Property' 'risk of Injury' 'leaf Litter and Tree Debris' 'retaining Wall Damage' 'compensation for Gutter Replacement']

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Procedural Posture

Class 2 Tree Dispute Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Hearing; Principal Judgment and Orders

Legal Issues

  1. 1 ["Whether the trees had caused, were causing, or were likely in the near future to cause damage to the applicants' property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether leaf, fruit and flower debris justified pruning orders or compensation for gutter replacement.' "Whether stems of trees 9 and 11 growing against the applicants' treated pine retaining wall justified intervention."]

Ratio Decidendi

The Court was not satisfied that leaf litter or debris had caused or was likely in the near future to cause damage to the applicants' gutters or other property, nor that most trees were likely to cause injury; ordinary tree debris is not actionable without property damage and generally does not warrant intervention. However, stems of trees 9 and 11 were growing against the timber retaining wall and causing deflection, with further damage likely if left to grow, so limited orders for their removal were justified.

Court Disposition

Application allowed in part; limited orders made for removal of stems from trees 9 and 11, with the remaining pruning application and compensation claim dismissed.

Orders

  • ["Within 30 days of the date of these orders, the respondents or their agents are to remove from Trees 9 and 11, the stem growing against the applicants' timber retaining wall. The stem is to be cut close to ground level." 'The applicants are to provide all reasonable access on reasonable notice to enable the...