Micevski v Atkins [2018] NSWLEC 1298

Micevski v Atkins [2018] NSWLEC 1298

The Forest Red Gum had caused damage and, after repeated limb failures, it was reasonable to expect the respondents to obtain professional advice and take preventive measures. Limited compensation and remedial orders were warranted: the respondents were not responsible for the first fence damage because they then had no reason to distrust the tree, but they had to pay $100 for the rose-gate, replace the remaining damaged steel fence panel, obtain a detailed arborist assessment of the Forest Red Gum, seek Council permission for recommended works and carry out permitted works. No compensation was warranted for the timber paling fence, steps, plants, Jacaranda pruning, removal, miscellaneous...

Jurisdiction
Australia
Judgment Date
13 June 2018
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing
Outcome
The application is upheld.
Legal Topics
['damage Caused by Tree' 'compensation for Property Damage' 'tree Maintenance and Arborist Inspection' 'neighbouring Landowners']
['trees Disputes Between Neighbours' 'property Law' 'land and Environment Court Proceedings'] ['damage Caused by Tree' 'compensation for Property Damage' 'tree Maintenance and Arborist Inspection' 'neighbouring Landowners']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 (nsw) / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondents' Forest Red Gum caused damage to the applicant's property or was likely in the near future to cause damage or injury under the Trees (Disputes Between Neighbours) Act 2006 (NSW)." "Which elements of the applicant's claimed damage warranted compensation or remedial orders." "Whether orders were required in relation to the respondents' Jacaranda." 'Whether further assessment and works were required for the Forest Red Gum.']

Ratio Decidendi

The Forest Red Gum had caused damage and, after repeated limb failures, it was reasonable to expect the respondents to obtain professional advice and take preventive measures. Limited compensation and remedial orders were warranted: the respondents were not responsible for the first fence damage because they then had no reason to distrust the tree, but they had to pay $100 for the rose-gate, replace the remaining damaged steel fence panel, obtain a detailed arborist assessment of the Forest Red Gum, seek Council permission for recommended works and carry out permitted works. No compensation was warranted for the timber paling fence, steps, plants, Jacaranda pruning, removal, miscellaneous...

Court Disposition

The application is upheld.

Orders

  • ['Within 30 days of the date of these orders, the respondents are to pay the applicant the sum of $100.' 'Within 7 days of receiving $100 from the respondents, the applicant is to provide them with a written receipt.' 'Within 60 days of the date of these orders the respondents are to replace the damaged steel fence...