Barruffa v Zebrowski [2008] NSWLEC 1401

Barruffa v Zebrowski [2008] NSWLEC 1401

The application failed because the alleged concrete edging strip damage was not shown to be on the applicants' property, the trees identified as likely causes of house damage had been removed before the application was made, there was no arboricultural basis to conclude that the Golden Cypresses were likely to cause damage in the near future, and the Court was not comfortably satisfied that the grapefruit tree caused the alleged shed slab cracking.

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Trees (neighbours) Application / Extemporary Judgment
Outcome
Application dismissed.
Legal Topics
['removal of Trees on Neighbouring Land' 'property Damage Allegedly Caused by Trees' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006' 'likely Damage in the Near Future']
['trees (neighbour Disputes)' 'land and Environment'] ['removal of Trees on Neighbouring Land' 'property Damage Allegedly Caused by Trees' 'jurisdiction Under S10(2) of the Trees (disputes Between Neighbours) Act 2006' 'likely Damage in the Near Future']

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Procedural Posture

Trees (neighbours) Application / Extemporary Judgment

Legal Issues

  1. 1 ["Whether alleged damage to a concrete edging strip caused by the five front pine trees concerned property on the applicants' land and satisfied s10(2) of the Trees (Disputes Between Neighbours) Act 2006." "Whether damage to the applicants' house could be addressed under the Act where the trees identified by engineering evidence as likely causes had been removed before the application was lodged." "Whether five Golden Cypress trees were likely to cause damage to the applicants' path and garden bed surrounds in the near future." "Whether the grapefruit tree caused cracking to the applicants' shed slab or affected the sewer pipe connection, and whether any order should be made as a matter of discretion."]

Ratio Decidendi

The application failed because the alleged concrete edging strip damage was not shown to be on the applicants' property, the trees identified as likely causes of house damage had been removed before the application was made, there was no arboricultural basis to conclude that the Golden Cypresses were likely to cause damage in the near future, and the Court was not comfortably satisfied that the grapefruit tree caused the alleged shed slab cracking.

Court Disposition

Application dismissed.

Orders

  • ["Mr Barruffa's application fails on all counts and is dismissed."]