Krivoshev v Mahadevan [2009] NSWLEC 1277

Krivoshev v Mahadevan [2009] NSWLEC 1277

The Court found that while the tree had caused some minor damage (to the fence, from falling branches, and minor staining), none of the damage or risk was sufficiently serious to warrant removal or major interference. Instead, remedial pruning was ordered to reduce risk of injury from falling branches. Claims for compensation were refused as unsupported by evidence, time barred, or considered ordinary maintenance.

Jurisdiction
Australia
Judgment Date
28 July 2009
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment
Outcome
Application refused in part; upheld in part. Orders made for remedial pruning, removal and compensation refused.
Legal Topics
['neighbouring Trees' 'tree Preservation Orders' 'compensation for Property Damage' 'pruning and Tree Maintenance']
['environmental Law'] ['neighbouring Trees' 'tree Preservation Orders' 'compensation for Property Damage' 'pruning and Tree Maintenance']

Case Brief

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the Lilly Pilly tree caused damage or injury within the meaning of s 10(2) of the Trees (Disputes Between Neighbours) Act 2006' 'Whether removal or pruning of the tree is justified' 'Entitlement to compensation for property damage allegedly caused by the tree']

Ratio Decidendi

The Court found that while the tree had caused some minor damage (to the fence, from falling branches, and minor staining), none of the damage or risk was sufficiently serious to warrant removal or major interference. Instead, remedial pruning was ordered to reduce risk of injury from falling branches. Claims for compensation were refused as unsupported by evidence, time barred, or considered ordinary maintenance.

Court Disposition

Application refused in part; upheld in part. Orders made for remedial pruning, removal and compensation refused.

Orders

  • ['Refusal of removal of the tree and compensation claims.' 'Order for remedial (restorative) pruning of the tree, to be specified and carried out by a qualified contractor, under AQF Level 5 supervision, with specifications set in the orders, and costs to be shared equally between both parties.' 'Pruning not to...