Kiernicki v Couto [2008] NSWLEC 1515

Kiernicki v Couto [2008] NSWLEC 1515

Removal orders for Tree 2 and Tree 3 are warranted because both have caused actual property damage (to the dividing fence or applicant's house), satisfying s 10(2)(a) of the Act. For all other trees, the statutory tests are not met as there is no evidence of present or likely imminent damage.

Parties
Applicant: Mr H. Kiernicki; Respondent: M. P. Couto
Jurisdiction
Australia
Judgment Date
10 December 2008
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing
Outcome
Application upheld in part (orders made for removal of two trees); application otherwise dismissed.
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Removal of Trees, Property Boundaries, Remedy for Property Damage
Environment and Planning Law Trees (disputes Between Neighbours) Act 2006 Removal of Trees Property Boundaries Remedy for Property Damage

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Parties

Mr H. Kiernicki

Applicant

M. P. Couto

Respondent

Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Judgment After Hearing

Legal Issues

  1. 1 Whether any of the trees identified in the application caused or are likely to cause damage to the applicant's property or are likely to cause injury to any person as required under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether the court should exercise its discretion under s 9 to order removal or other remedy
  3. 3 Which party is responsible for removal and cost of removal of particular trees located near the property boundary

Ratio Decidendi

Removal orders for Tree 2 and Tree 3 are warranted because both have caused actual property damage (to the dividing fence or applicant's house), satisfying s 10(2)(a) of the Act. For all other trees, the statutory tests are not met as there is no evidence of present or likely imminent damage.

Court Disposition

Application upheld in part (orders made for removal of two trees); application otherwise dismissed.

Orders

  • Tree 2 (southern Cypress on common boundary) shall be removed by Mr Kiernicki at his cost by 31 March 2009.
  • Tree 3 (northern Cypress on common boundary) shall be removed by Ms Couto at her cost by 31 March 2009.