Papadopoullos & anor v Yeomans [2015] NSWLEC 1110

Papadopoullos & anor v Yeomans [2015] NSWLEC 1110

The avocado tree was causing minor damage to the dividing fence, which was partly the applicants' property, and its expected further growth would cause more damage. Because a contiguous fence and the tree were mutually exclusive, and pruning would not solve the problem given the tree's growth habit and low crossing point into the applicants' property, removal of the tree was required. The respondent, on whose land the tree was located, was to pay for removal, while the applicants were to reimburse 50% of the fence rectification cost because it was a dividing fence.

Jurisdiction
Australia
Judgment Date
22 April 2015
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision
Outcome
Application upheld in part.
Legal Topics
['damage to Dividing Fence' 'removal of Avocado Tree' 'pruning' 'access for Works' 'costs and Filing Fee']
['land and Environment' 'tree Disputes Between Neighbours'] ['damage to Dividing Fence' 'removal of Avocado Tree' 'pruning' 'access for Works' 'costs and Filing Fee']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Hearing and Extemporaneous Decision

Legal Issues

  1. 1 ["Whether the avocado tree had caused, was causing, or could in the near future cause damage to the applicants' property within s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether pruning would be sufficient or removal of the tree was required to address damage to the dividing fence.' 'Who should bear the cost of tree removal and rectification of the dividing fence.' 'Whether the applicants could obtain reimbursement of the application filing fee.']

Ratio Decidendi

The avocado tree was causing minor damage to the dividing fence, which was partly the applicants' property, and its expected further growth would cause more damage. Because a contiguous fence and the tree were mutually exclusive, and pruning would not solve the problem given the tree's growth habit and low crossing point into the applicants' property, removal of the tree was required. The respondent, on whose land the tree was located, was to pay for removal, while the applicants were to reimburse 50% of the fence rectification cost because it was a dividing fence.

Court Disposition

Application upheld in part.

Orders

  • ['Within 90 days of the date of the orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the avocado tree to ground level and to poison the stump.' 'The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.' 'The applicants are to...