Inzitari & anor v Vautin & anor [2017] NSWLEC 1411

Inzitari & anor v Vautin & anor [2017] NSWLEC 1411

The tree had not damaged the applicants' dwelling and was not likely in the near future to damage the applicants' property or injure anyone on their property. However, the applicants' trenching near the boundary was likely to have damaged structural roots, and combined with the tree's weight bias toward the respondents' property, created a reasonably foreseeable risk of failure onto an area used by young children. The Court's jurisdiction under s 9 of the Trees (Disputes Between Neighbours) Act 2006 was engaged, and because the applicants' actions caused the hazardous condition, they were ordered to pay for removal and replacement of the tree.

Jurisdiction
Australia
Judgment Date
02 August 2017
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing and Final Orders
Outcome
Orders made for removal of the Eucalypt and replacement tree at the applicants' expense.
Legal Topics
['potential Damage to Property' 'risk of Injury' 'tree Removal' 'replacement Tree' 'damage to Structural Roots' "applicants' Responsibility for Costs"]
['trees Disputes' 'neighbour Disputes' 'property Law'] ['potential Damage to Property' 'risk of Injury' 'tree Removal' 'replacement Tree' 'damage to Structural Roots' "applicants' Responsibility for Costs"]

Case Brief

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing and Final Orders

Legal Issues

  1. 1 ["Whether the Eucalypt has caused, is causing, or is likely in the near future to cause damage to the applicants' property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the Eucalypt is likely to cause injury to any person under s 10(2)(b) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the applicants' excavation near the boundary damaged structural roots and made the tree hazardous, and what orders should be made in light of the parties' actions."]

Ratio Decidendi

The tree had not damaged the applicants' dwelling and was not likely in the near future to damage the applicants' property or injure anyone on their property. However, the applicants' trenching near the boundary was likely to have damaged structural roots, and combined with the tree's weight bias toward the respondents' property, created a reasonably foreseeable risk of failure onto an area used by young children. The Court's jurisdiction under s 9 of the Trees (Disputes Between Neighbours) Act 2006 was engaged, and because the applicants' actions caused the hazardous condition, they were ordered to pay for removal and replacement of the tree.

Court Disposition

Orders made for removal of the Eucalypt and replacement tree at the applicants' expense.

Orders

  • ["Within 60 days of the date of the orders, the applicants are to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture, and appropriate insurance cover, to remove the Eucalypt tree to ground level and grind the stump and main roots to a depth of at least 200mm. All debris,...