Pietilainen v Paisley-Topp [2023] NSWLEC 1069

Pietilainen v Paisley-Topp [2023] NSWLEC 1069

The Court was satisfied that low branches from Tree 2 overhanging and sweeping the Applicant's dwelling roof, and regrowth or branch stubs associated with Tree 1 near the shed, made minor property damage likely in the near future, thereby engaging s 10(2)(a) and justifying pruning orders. The Court was not satisfied that alleged root damage to paths or foundations was likely in the near future because the Applicant provided no specific evidence beyond generalised species characteristics and proximity. Falling leaves, debris, mould and ordinary maintenance did not constitute actionable damage under the Trees Act, the Act gave no remedy for overshadowing solar panels by amenity trees, and...

Jurisdiction
Australia
Judgment Date
15 February 2023
Procedural Posture
Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing; Final Orders
Outcome
The application is granted in part.
Legal Topics
['apprehended Property Damage From Trees' 'overhanging Branches' 'falling Leaves and Gutter Maintenance' 'root Damage to Paths and Foundations' 'severe Obstruction of Sunlight by Hedge' 'pruning Orders']
['land and Environment' 'tree Disputes Between Neighbours'] ['apprehended Property Damage From Trees' 'overhanging Branches' 'falling Leaves and Gutter Maintenance' 'root Damage to Paths and Foundations' 'severe Obstruction of Sunlight by Hedge' 'pruning Orders']

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Procedural Posture

Class 2 Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment Following Onsite Hearing; Final Orders

Legal Issues

  1. 1 ["Whether branches from Tree 1 or Tree 2 had caused, were causing, or were likely in the near future to cause damage to the Applicant's property." 'Whether alleged root growth from Tree 2 was likely in the near future to damage concrete paths or building foundations.' 'Whether falling leaves, debris and mould constituted damage or an unreasonable maintenance burden actionable under Pt 2 of the Trees Act.' 'Whether the Trees Act provided a remedy for overshadowing of solar panels by amenity trees.' "Whether the Viburnum hedge severely obstructed sunlight to windows of the Applicant's dwelling under Pt 2A of the Trees Act." 'What orders, if any, should be made having regard to the statutory discretionary matters.']

Ratio Decidendi

The Court was satisfied that low branches from Tree 2 overhanging and sweeping the Applicant's dwelling roof, and regrowth or branch stubs associated with Tree 1 near the shed, made minor property damage likely in the near future, thereby engaging s 10(2)(a) and justifying pruning orders. The Court was not satisfied that alleged root damage to paths or foundations was likely in the near future because the Applicant provided no specific evidence beyond generalised species characteristics and proximity. Falling leaves, debris, mould and ordinary maintenance did not constitute actionable damage under the Trees Act, the Act gave no remedy for overshadowing solar panels by amenity trees, and...

Court Disposition

The application is granted in part.

Orders

  • ['The application is granted in part.' 'Within 60 days of the date of these orders, the Respondents, at their expense, shall employ AQF level 3 qualified arborists, who hold all appropriate insurances, to prune branches from Tree 1 and Tree 2.' "Pruning of Tree 1 shall comprise removal of branch stubs on branches...