Schilling v Kalanoski [2013] NSWLEC 1178

Schilling v Kalanoski [2013] NSWLEC 1178

The eucalypt was principally on the respondent's land and had caused damage to the fence, and dead wood falling from it could cause damage or injury, satisfying s 10(2); however, because it was an apparently healthy remnant tree contributing to biodiversity, public amenity and landscape character, removal was not justified and dead wood removal plus fence repair were appropriate. The fig did not satisfy s 10(2) because there had been no further sewer blockages after replacement of the pipe with PVC and the exposed roots did not create a sufficiently significant tripping risk, so no intervention with the fig was ordered beyond requiring the fence repair to accommodate its roots.

Jurisdiction
Australia
Judgment Date
25 September 2013
Procedural Posture
Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part; removal refused; dead wood to be removed from tree; fence to be repaired.
Legal Topics
['damage to Dividing Fence' 'potential Sewer Damage From Tree Roots' 'risk of Injury From Falling Branches or Exposed Roots' 'tree Removal' 'pruning and Dead Wood Removal']
['trees Disputes' 'neighbour Disputes' 'property Law' 'land and Environment Court Jurisdiction'] ['damage to Dividing Fence' 'potential Sewer Damage From Tree Roots' 'risk of Injury From Falling Branches or Exposed Roots' 'tree Removal' 'pruning and Dead Wood Removal']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ["Whether the eucalypt and the fig were situated wholly or principally on the respondent's land for the purposes of the Trees (Disputes Between Neighbours) Act 2006." "Whether the eucalypt had caused, was causing, or was likely in the near future to cause damage to the applicant's property or was likely to cause injury to any person." 'Whether the fig roots were likely in the near future to cause sewer damage or likely to cause injury by creating a tripping hazard.' 'Whether removal of either tree was justified or whether lesser orders should be made.']

Ratio Decidendi

The eucalypt was principally on the respondent's land and had caused damage to the fence, and dead wood falling from it could cause damage or injury, satisfying s 10(2); however, because it was an apparently healthy remnant tree contributing to biodiversity, public amenity and landscape character, removal was not justified and dead wood removal plus fence repair were appropriate. The fig did not satisfy s 10(2) because there had been no further sewer blockages after replacement of the pipe with PVC and the exposed roots did not create a sufficiently significant tripping risk, so no intervention with the fig was ordered beyond requiring the fence repair to accommodate its roots.

Court Disposition

Application upheld in part; removal refused; dead wood to be removed from tree; fence to be repaired.

Orders

  • ['The application is upheld in part.' 'The application to remove the trees is dismissed.' "Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove all dead wood 40mm or more in diameter at its base from all parts of the...