Pali v Costigan & anor; ; McBride & anor v Costigan & anor [2015] NSWLEC 1254

Pali v Costigan & anor; ; McBride & anor v Costigan & anor [2015] NSWLEC 1254

Tree 1 had caused fence damage through a recent limb failure and both Tree 1 and Tree 2 posed a risk of injury or damage because of structural defects and hazardous limbs, enlivening the Court's jurisdiction; however, the risks could be minimised by pruning rather than removal. The other trees did not show structural defects likely to cause damage or injury, and ordinary debris such as leaves and twigs did not constitute damage sufficient to warrant orders. Because the limb failure from Tree 1 was to some extent foreseeable, the respondents should pay compensation for the fence lattice repair upon receipt of a paid invoice, limited to $440.

Jurisdiction
Australia
Judgment Date
25 June 2015
Procedural Posture
Class 2 Tree Dispute Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing
Outcome
The application is upheld; orders were made for pruning of Tree 1 and Tree 2 and conditional compensation to Mr Pali, but removal of the trees was not ordered.
Legal Topics
['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury' 'tree Pruning' 'compensation']
['environmental Law' 'property Law'] ['trees Disputes Between Neighbours' 'damage to Property' 'risk of Injury' 'tree Pruning' 'compensation']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether Tree 1 and Tree 2 had caused, were causing, or were likely in the near future to cause damage to the applicants' property, or were likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the trees should be removed or whether pruning would sufficiently address the risk of limb failure.' "Whether leaves, twigs and other debris from the other trees constituted damage sufficient to enliven the Court's jurisdiction." 'Whether the respondents should compensate Mr Pali for damage to the fence lattice caused by a fallen limb.']

Ratio Decidendi

Tree 1 had caused fence damage through a recent limb failure and both Tree 1 and Tree 2 posed a risk of injury or damage because of structural defects and hazardous limbs, enlivening the Court's jurisdiction; however, the risks could be minimised by pruning rather than removal. The other trees did not show structural defects likely to cause damage or injury, and ordinary debris such as leaves and twigs did not constitute damage sufficient to warrant orders. Because the limb failure from Tree 1 was to some extent foreseeable, the respondents should pay compensation for the fence lattice repair upon receipt of a paid invoice, limited to $440.

Court Disposition

The application is upheld; orders were made for pruning of Tree 1 and Tree 2 and conditional compensation to Mr Pali, but removal of the trees was not ordered.

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 appropriate insurances to prune Tree 1 to remove the large low western limb back to its collar at the stem.' 'Within 60 days of the date of the orders the...