Ricco, Gerardo v Ricco, Luigi [2020] NSWLEC 1626

Ricco, Gerardo v Ricco, Luigi [2020] NSWLEC 1626

The Court found that while the respondent's trees contributed to minor damage to the dividing fence, the primary cause of its dilapidation was age, and therefore both parties are to share equally in the cost of its replacement. Orders for limited pruning of branches likely to cause future damage were appropriate, but pervasive pruning or cutting to the boundary was not justified as it would unnecessarily harm the trees and was not required under the Act when no evidence of significant damage was found.

Parties
Applicant: Gerardo Ricco; Respondent: Luigi Ricco
Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 / Principal Judgment/final Orders
Outcome
Orders made for replacement of fence at shared cost, limited pruning of trees, and specified access and maintenance requirements; no order for compensation to respondent for arborist report.
Legal Topics
Trees on Boundaries, Dividing Fences, Pruning, Damage to Property
Property Law Neighbour Disputes Environmental Law Trees on Boundaries Dividing Fences Pruning Damage to Property

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Parties

Gerardo Ricco

Applicant

Luigi Ricco

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 and Dividing Fences Act 1991 / Principal Judgment/final Orders

Legal Issues

  1. 1 Whether trees on respondent's property caused or are likely to cause damage to the applicant's property or fence
  2. 2 Responsibility for repair/replacement of the dividing fence
  3. 3 Appropriate scope of pruning orders

Ratio Decidendi

The Court found that while the respondent's trees contributed to minor damage to the dividing fence, the primary cause of its dilapidation was age, and therefore both parties are to share equally in the cost of its replacement. Orders for limited pruning of branches likely to cause future damage were appropriate, but pervasive pruning or cutting to the boundary was not justified as it would unnecessarily harm the trees and was not required under the Act when no evidence of significant damage was found.

Court Disposition

Orders made for replacement of fence at shared cost, limited pruning of trees, and specified access and maintenance requirements; no order for compensation to respondent for arborist report.

Orders

  • Within 45 days, applicant to obtain three quotes for replacement dividing fence, including removal of existing fence and banana trees at northern boundary; if a higher standard fence is chosen, the requesting party pays all additional costs.
  • Quotes are to be provided to respondent; respondent may obtain own quote. Cheapest qualifying quote to be selected if no agreement. Fence to be replaced within 90 days, paid for by applicant; respondent to reimburse 50% within 14 days of invoice.