Kovacevic v Maras [2020] NSWLEC 1584

Kovacevic v Maras [2020] NSWLEC 1584

The tree is likely to cause damage to the existing fence and possibly injury due to overextended branches and deadwood likely to fail. Pruning measures will mitigate these risks; the tree has not materially damaged the fence to date and orders for fence replacement cannot be made as the statutory threshold is not met.

Parties
Applicant: Nada Kovacevic; First Respondent: Natalie Maras; Second Respondent: Nathaniel Maras
Jurisdiction
Australia
Judgment Date
26 November 2020
Procedural Posture
Tree Dispute (class 2) / Principal Judgment
Outcome
Orders for pruning issued; no orders for fence replacement; parties to cooperate for access and arborist report.
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Dividing Fences Act 1991, Damage Caused by Neighbouring Tree, Pruning Orders, Fire Risk, Injury Risk, Fence Damage
Property Law Environmental Law Neighbour Disputes Trees (disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Damage Caused by Neighbouring Tree Pruning Orders Fire Risk +2 more

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Parties

Nada Kovacevic

Applicant

Natalie Maras

First Respondent

Nathaniel Maras

Second Respondent

Procedural Posture

Tree Dispute (class 2) / Principal Judgment

Legal Issues

  1. 1 Whether the neighbouring tree has damaged the fence
  2. 2 Whether the tree is likely to cause damage or injury to the applicant's property or persons
  3. 3 Whether orders can be made under the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The tree is likely to cause damage to the existing fence and possibly injury due to overextended branches and deadwood likely to fail. Pruning measures will mitigate these risks; the tree has not materially damaged the fence to date and orders for fence replacement cannot be made as the statutory threshold is not met.

Court Disposition

Orders for pruning issued; no orders for fence replacement; parties to cooperate for access and arborist report.

Orders

  • Within 30 days, respondents to engage and pay for an arborist to prune the tree as specified (remove lowest overextended branches, reduce others, remove deadwood, identify and remove likely-to-fail branches).
  • Works to comply with AS 4373-2007 and 2016 Safe Work Australia Guide.