Couto v Kiernicki [2008] NSWLEC 1513

Couto v Kiernicki [2008] NSWLEC 1513

Tree A had caused roof damage and was likely in the near future to cause further property damage and injury due to branch failure, so pruning was warranted. Tree B was likely in the near future to suffer further branch failure causing property damage and was not a sound specimen, so removal was warranted. Tree C was likely to lose larger branches or collapse due to decay and cause injury, so removal was warranted. Ms Couto was entitled to compensation for the reasonable cost of repairing the roof damage caused by Tree A.

Jurisdiction
Australia
Judgment Date
10 December 2008
Procedural Posture
Application Under the Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment After Hearing
Outcome
Application upheld.
Legal Topics
['compensation for Repair of Property Damage' 'pruning of Tree Likely to Cause Damage or Injury' 'removal of Trees Likely to Cause Damage or Injury']
['trees (disputes Between Neighbours)' 'neighbour Disputes' 'property Damage'] ['compensation for Repair of Property Damage' 'pruning of Tree Likely to Cause Damage or Injury' 'removal of Trees Likely to Cause Damage or Injury']

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 Tree A had caused damage to the applicant's property or was likely in the near future to cause damage or injury." "Whether Tree B was likely in the near future to cause damage to the applicant's property." 'Whether Tree C was likely to cause injury to any person.' 'Whether compensation should be ordered for repair of roof damage.']

Ratio Decidendi

Tree A had caused roof damage and was likely in the near future to cause further property damage and injury due to branch failure, so pruning was warranted. Tree B was likely in the near future to suffer further branch failure causing property damage and was not a sound specimen, so removal was warranted. Tree C was likely to lose larger branches or collapse due to decay and cause injury, so removal was warranted. Ms Couto was entitled to compensation for the reasonable cost of repairing the roof damage caused by Tree A.

Court Disposition

Application upheld.

Orders

  • ['Tree A, the more southerly of the two Blackbutt trees near the common boundary between 5 Emma Place and 3 Emma Place, Ambarvale, shall be pruned by Mr Kiernicki at his cost by 31 March 2009 to substantially reduce the end weight of two specified eastern branches.' 'The pruning of Tree A shall be done in accordance...