Kovacic v Smith & anor [2016] NSWLEC 1103

Kovacic v Smith & anor [2016] NSWLEC 1103

The Court was not satisfied that the alleged pool fence damage warranted orders and there was no suggestion the tree was currently causing damage. However, the presence of two hanging and partially detached branches and minor deadwood made future injury likely if such material fell and contacted a person, enlivening jurisdiction under s 10(2). Removal of the tree or pruning of structurally sound large diameter healthy branches was inappropriate because it would be detrimental to the tree and could increase future branch failure risk. Limited pruning of deadwood, detached or partially detached branches, and any structurally unsound overhanging branches was therefore ordered.

Jurisdiction
Australia
Judgment Date
11 March 2016
Procedural Posture
Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Tree / Principal Judgment After Hearing
Outcome
The application is upheld in part; removal of the tree and pruning of all large diameter overhanging branches are dismissed, but limited pruning orders are made.
Legal Topics
["future Injury From Neighbour's Tree" 'future Damage to Property' 'tree Pruning Orders' 'tree Removal Refused' 'costs of Arboricultural Report']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ["future Injury From Neighbour's Tree" 'future Damage to Property' 'tree Pruning Orders' 'tree Removal Refused' 'costs of Arboricultural Report']

Case Brief

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Procedural Posture

Class 2 Application Pursuant to Section 7 of the Trees (disputes Between Neighbours) Act 2006 Concerning a Tree / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether Tree 1 had caused, was causing, was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to a person under s 10(2) of the Act." "Whether the Cedrus deodara (Himalayan Cedar) should be removed or have all large diameter branches overhanging the applicant's property pruned." 'Whether limited pruning should be ordered to address deadwood and detached or partially detached branches.' 'Whether the respondents could obtain reimbursement for the costs of their arboricultural report before an Acting Commissioner.']

Ratio Decidendi

The Court was not satisfied that the alleged pool fence damage warranted orders and there was no suggestion the tree was currently causing damage. However, the presence of two hanging and partially detached branches and minor deadwood made future injury likely if such material fell and contacted a person, enlivening jurisdiction under s 10(2). Removal of the tree or pruning of structurally sound large diameter healthy branches was inappropriate because it would be detrimental to the tree and could increase future branch failure risk. Limited pruning of deadwood, detached or partially detached branches, and any structurally unsound overhanging branches was therefore ordered.

Court Disposition

The application is upheld in part; removal of the tree and pruning of all large diameter overhanging branches are dismissed, but limited pruning orders are made.

Orders

  • ['The application to remove the Cedrus deodara (Himalayan Cedar) is dismissed.' "The application to prune all large diameter branches from the Cedrus deodara (Himalayan Cedar) that are overhanging the applicant's property is dismissed." "Within 30 days of the date of the order the respondents are to engage and pay...