Powell v Pikulyk [2019] NSWLEC 1562

Powell v Pikulyk [2019] NSWLEC 1562

The applicants made reasonable efforts to reach agreement and a live branch from the respondents' tree had damaged the applicants' carport, permitting orders under the Trees Act. Compensation for vehicle damage was refused because the repair quote included extensive works not shown to be related to the incident and there was no evidence that the failure of the live branch was foreseeable. Pruning was ordered because a poorly attached live branch above the applicants' property was likely to fail in the near future and damage the carport.

Jurisdiction
Australia
Judgment Date
08 November 2019
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing
Outcome
Compensation refused; pruning orders made to prevent further damage.
Legal Topics
['tree Damage to Neighbouring Property' 'compensation for Vehicle Damage' 'pruning Orders' 'reasonable Effort to Reach Agreement' 'likelihood of Future Damage']
['environmental and Planning Law' 'trees Disputes Between Neighbours'] ['tree Damage to Neighbouring Property' 'compensation for Vehicle Damage' 'pruning Orders' 'reasonable Effort to Reach Agreement' 'likelihood of Future Damage']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicants made a reasonable effort to reach agreement with the respondents before orders could be made.' "Whether the tree caused damage to the applicants' property or was likely in the near future to cause damage or injury." "Whether compensation should be ordered for damage to the applicants' car." 'Whether pruning orders should be made to prevent further damage.']

Ratio Decidendi

The applicants made reasonable efforts to reach agreement and a live branch from the respondents' tree had damaged the applicants' carport, permitting orders under the Trees Act. Compensation for vehicle damage was refused because the repair quote included extensive works not shown to be related to the incident and there was no evidence that the failure of the live branch was foreseeable. Pruning was ordered because a poorly attached live branch above the applicants' property was likely to fail in the near future and damage the carport.

Court Disposition

Compensation refused; pruning orders made to prevent further damage.

Orders

  • ['Within 60 days of the date of the orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Blackbutt near the north-eastern corner of their property to remove the live branch above the neighbouring property,...