Lobasso v Jin [2023] NSWLEC 1543

Lobasso v Jin [2023] NSWLEC 1543

The Court was satisfied that the applicant had made a reasonable effort to reach agreement, that roots of the Monterey Cypress caused concrete garden edging damage, and that the respondents' trees contributed to damage to the old boundary fence. The Court also found that residual dead and live Bougainvillea stems overhanging the applicant's yard created a genuine risk of injury as the stems decayed and fell. However, the claims based on leaf and bract debris, clogged gutters, ceiling damage, sunlight obstruction, soil drying, and likely damage to Cocos palms did not justify removal or further relief under the Trees Act. Because pruning and maintenance of the Bougainvillea, removal of...

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment and Orders Following Onsite Hearing
Outcome
Application allowed in part; tree removal refused; pruning, compensation and fence contribution orders made.
Legal Topics
['damage to Property From Trees' 'risk of Injury From Overhanging Bougainvillea Stems' 'tree Pruning Orders' 'dividing Fence Contribution' 'neighbour Dispute Resolution']
['trees Disputes Between Neighbours' 'property Law' 'dividing Fences'] ['damage to Property From Trees' 'risk of Injury From Overhanging Bougainvillea Stems' 'tree Pruning Orders' 'dividing Fence Contribution' 'neighbour Dispute Resolution']

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Procedural Posture

Class 2 Application Under S 7 of Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Final Judgment and Orders Following Onsite Hearing

Legal Issues

  1. 1 ['Whether the applicant made a reasonable effort to reach agreement with the respondents under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether the Monterey Cypress or Bougainvillea caused, was causing, or was likely in the near future to cause damage to the applicant's property under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether falling leaves, bracts and other debris from the Bougainvillea justified orders for removal or intervention.' 'Whether the Bougainvillea created a likely risk of injury to any person.' 'What orders were appropriate, including pruning, compensation for concrete garden edging, and contribution to replacement of the common boundary fence.']

Ratio Decidendi

The Court was satisfied that the applicant had made a reasonable effort to reach agreement, that roots of the Monterey Cypress caused concrete garden edging damage, and that the respondents' trees contributed to damage to the old boundary fence. The Court also found that residual dead and live Bougainvillea stems overhanging the applicant's yard created a genuine risk of injury as the stems decayed and fell. However, the claims based on leaf and bract debris, clogged gutters, ceiling damage, sunlight obstruction, soil drying, and likely damage to Cocos palms did not justify removal or further relief under the Trees Act. Because pruning and maintenance of the Bougainvillea, removal of...

Court Disposition

Application allowed in part; tree removal refused; pruning, compensation and fence contribution orders made.

Orders

  • ['Within 30 days of the date of the orders, the applicant shall provide bank account details to the respondents and the respondents shall transfer $420.00 to the applicant by Electronic Fund Transfer as compensation for concrete garden edge damage.' 'Within 60 days of the date of the orders, the respondents, at...