Karadinovski v Weston & anor [2014] NSWLEC 1036

Karadinovski v Weston & anor [2014] NSWLEC 1036

The applicant did not establish actionable damage from leaves, mould, lichen, gutter material, television reception interference, or fire risk. However, branches from Tree 1 and possibly Tree 3 were in contact with or close to the rear secondary building and aerial, and branches from Tree 6 were close enough to the applicant's roof that damage could occur in the near future. That satisfied s 10(2) only to the extent necessary to order limited pruning to provide clearance, but did not justify pruning to the fence line, roof cleaning costs, ongoing pruning, or other relief.

Jurisdiction
Australia
Judgment Date
04 March 2014
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
The application was upheld in part and pruning was ordered.
Legal Topics
['damage to Property From Trees' 'overhanging Branches' 'leaves, Mould and Blocked Gutters' 'television Reception Interference' 'fire Risk' 'pruning Orders']
['tree Disputes' 'property Law' 'land and Environment Court Proceedings'] ['damage to Property From Trees' 'overhanging Branches' 'leaves, Mould and Blocked Gutters' 'television Reception Interference' 'fire Risk' 'pruning Orders']

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Procedural Posture

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

Legal Issues

  1. 1 ["Whether trees on the respondents' property have caused, are causing, or are likely in the near future to cause damage to the applicant's property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether mould or lichen on roof tiles, walls and paths, and leaves in gutters or downpipes, constituted damage to property caused by the trees.' 'Whether alleged interference with a TV dish or television reception could support orders under Part 2 of the Act.' 'Whether fallen debris creating a possible fire risk could support orders for intervention with the trees.' 'Whether pruning to the boundary line or more limited pruning was appropriate.']

Ratio Decidendi

The applicant did not establish actionable damage from leaves, mould, lichen, gutter material, television reception interference, or fire risk. However, branches from Tree 1 and possibly Tree 3 were in contact with or close to the rear secondary building and aerial, and branches from Tree 6 were close enough to the applicant's roof that damage could occur in the near future. That satisfied s 10(2) only to the extent necessary to order limited pruning to provide clearance, but did not justify pruning to the fence line, roof cleaning costs, ongoing pruning, or other relief.

Court Disposition

The application was upheld in part and pruning was ordered.

Orders

  • ['The application is upheld in part.' 'Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to undertake the pruning work described in paragraphs [30] and [32] of this judgment.' 'The work in (2) is to be carried out in...