Badzovski v Karovski [2021] NSWLEC 1794

Badzovski v Karovski [2021] NSWLEC 1794

The Court was satisfied that the respondents' trees had damaged the common boundary fence, and although some ambiguity existed as to Tree 1's location, jurisdiction was established since other trees on the respondents' land had also damaged the fence. Therefore, it was appropriate to order the removal of Tree 1 (cost shared) and for the parties to replace the entire fence and share the cost. The Court found Pt 2A of the Trees Act did not apply as the hedge was not planted but self-sown, and therefore the application under Pt 2A was refused.

Jurisdiction
Australia
Judgment Date
16 December 2021
Procedural Posture
Tree Dispute/class 2 – Land and Environment Court Application / First Instance Decision – Judgment and Final Orders
Outcome
Pt 2A application refused, Pt 2 application granted in part – orders for shared removal of Tree 1 and replacement of fence with costs shared.
Legal Topics
['tree Disputes Between Neighbours' 'dividing Fences' 'damage to Boundary Fence' 'removal of Trees' 'obstruction of Sunlight']
['property Law' 'environmental Law' 'neighbour Disputes'] ['tree Disputes Between Neighbours' 'dividing Fences' 'damage to Boundary Fence' 'removal of Trees' 'obstruction of Sunlight']

Case Brief

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Procedural Posture

Tree Dispute/class 2 – Land and Environment Court Application / First Instance Decision – Judgment and Final Orders

Legal Issues

  1. 1 ["Whether respondents' trees caused damage to the common boundary fence" "Whether the trees are on the respondents' land" 'Appropriate orders for tree removal and fencing work' 'Whether Pt 2A of the Trees (Disputes Between Neighbours) Act 2006 applies concerning obstruction of sunlight']

Ratio Decidendi

The Court was satisfied that the respondents' trees had damaged the common boundary fence, and although some ambiguity existed as to Tree 1's location, jurisdiction was established since other trees on the respondents' land had also damaged the fence. Therefore, it was appropriate to order the removal of Tree 1 (cost shared) and for the parties to replace the entire fence and share the cost. The Court found Pt 2A of the Trees Act did not apply as the hedge was not planted but self-sown, and therefore the application under Pt 2A was refused.

Court Disposition

Pt 2A application refused, Pt 2 application granted in part – orders for shared removal of Tree 1 and replacement of fence with costs shared.

Orders

  • ['The Pt 2A application is refused.' 'The Pt 2 application is granted in part.' 'Within 28 days each party to provide to the other a quote from a qualified and insured arborist for removal of Tree 1 and stump grinding.' 'Within 60 days the applicant to arrange and pay for Tree 1 removal and stump grinding to...