Ruskin v Koopelian [2008] NSWLEC 1225

Ruskin v Koopelian [2008] NSWLEC 1225

The Illawarra Flame Tree satisfied the statutory tests because its root had lifted Mr Ruskin's driveway slab, affected the carport pier, and created a recurring likelihood of injury from tripping; because the offending root was a major structural root whose removal would likely make the tree unstable, repairing the damage required removal of the tree, at the Koopelians' cost. The Turpentine, Wattle and Paperbark trees did not meet the statutory tests because no damage or likely near-future damage or injury was proved, so the application concerning those trees was dismissed and compensation claims were dismissed or withdrawn.

Jurisdiction
Australia
Judgment Date
23 May 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Application upheld in part; orders made for removal of the Illawarra Flame Tree; application concerning the Turpentine, Wattle and Paperbark trees dismissed; compensation claims dismissed or withdrawn.
Legal Topics
['damage to Property' 'removal of Tree' 'risk of Injury' 'compensation']
['land and Environment' 'trees Disputes Between Neighbours'] ['damage to Property' 'removal of Tree' 'risk of Injury' 'compensation']

Case Brief

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Procedural Posture

Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the Illawarra Flame Tree caused, was causing, or was likely in the near future to cause damage to Mr Ruskin's property." 'Whether the Illawarra Flame Tree was likely to cause injury to any person.' 'Whether the Illawarra Flame Tree should be removed and who should bear the cost.' "Whether the Turpentine, Wattle and Paperbark trees caused damage or were likely in the near future to cause damage to Mr Ruskin's property or injury to any person." 'What compensation, if any, was appropriate.']

Ratio Decidendi

The Illawarra Flame Tree satisfied the statutory tests because its root had lifted Mr Ruskin's driveway slab, affected the carport pier, and created a recurring likelihood of injury from tripping; because the offending root was a major structural root whose removal would likely make the tree unstable, repairing the damage required removal of the tree, at the Koopelians' cost. The Turpentine, Wattle and Paperbark trees did not meet the statutory tests because no damage or likely near-future damage or injury was proved, so the application concerning those trees was dismissed and compensation claims were dismissed or withdrawn.

Court Disposition

Application upheld in part; orders made for removal of the Illawarra Flame Tree; application concerning the Turpentine, Wattle and Paperbark trees dismissed; compensation claims dismissed or withdrawn.

Orders

  • ['The Illawarra Flame Tree shall be cut off within 200 mm of ground level, the offending root cut off at the boundary and the tree removed by 31 August 2008.' 'The tree work in (1) shall be done at the cost of Armen and Annisa Koopelian, by a contractor of their choice having suitable insurances.' 'Mr Ruskin shall...