Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402

Ebrahim & anor v Vukovic & anor [2017] NSWLEC 1402

The Court was not satisfied that the respondents' trees caused compensable damage to the pergola, guttering, barbecue, fence, or other claimed items, or that debris, mould, pests or general safety concerns justified removal or compensation. However, the evidence showed that roots from one or more of the respondents' trees had lifted sections of paving within 3m of the rear fence, creating a tripping hazard and satisfying s 10(2). Because the damage was limited and discrete, removal of the trees and compensation were not warranted; limited paving rectification at the respondents' expense was appropriate.

Jurisdiction
Australia
Judgment Date
01 August 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application allowed only to the extent of limited paving rectification; tree removal and compensation dismissed.
Legal Topics
['damage to Property From Trees' 'tree Roots and Paving' 'tree Debris and Gutters' 'compensation' 'risk of Injury' 'removal of Trees' 'expert Evidence']
['trees Disputes' 'neighbour Disputes' 'property Damage'] ['damage to Property From Trees' 'tree Roots and Paving' 'tree Debris and Gutters' 'compensation' 'risk of Injury' 'removal of Trees' 'expert Evidence']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondents' Golden Cypress trees caused, were causing, or were likely in the near future to cause damage to the applicants' property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees were likely to cause injury to any person within s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' 'Whether orders should be made for removal of the trees, compensation, repairs, or limited rectification works.' 'Whether leaf litter, debris, mould, rodents or insects provided a sufficient basis for orders under the Trees Act.' 'Whether the evidence established a sufficient nexus between the trees and alleged damage to the pergola, guttering, barbecue, fence and paving.']

Ratio Decidendi

The Court was not satisfied that the respondents' trees caused compensable damage to the pergola, guttering, barbecue, fence, or other claimed items, or that debris, mould, pests or general safety concerns justified removal or compensation. However, the evidence showed that roots from one or more of the respondents' trees had lifted sections of paving within 3m of the rear fence, creating a tripping hazard and satisfying s 10(2). Because the damage was limited and discrete, removal of the trees and compensation were not warranted; limited paving rectification at the respondents' expense was appropriate.

Court Disposition

Application allowed only to the extent of limited paving rectification; tree removal and compensation dismissed.

Orders

  • ['The application to remove the trees is dismissed.' 'The application for compensation is dismissed.' "The respondents are to engage and pay for an appropriately qualified and experienced paving contractor to relay only those sections of the applicants' paving within 3m of the rear fence which have been displaced....