Gudelj v Szabo [2021] NSWLEC 1127

Gudelj v Szabo [2021] NSWLEC 1127

The applicant made reasonable effort to reach agreement by writing to the respondents. On the balance of probabilities, roots of Tree 2 caused the raised tiles on the applicant's verandah and further damage was likely, and Tree 1 was likely to displace a boundary fence pillar in the near future. No damage or likely near-future damage was shown for Trees 3-5. Considering s 12 matters, the need to prevent further damage by Trees 1 and 2 outweighed their relatively minor privacy and amenity value, there was insufficient room for a root barrier, and there was no reason to shift the removal expense from the respondents.

Jurisdiction
Australia
Judgment Date
09 March 2021
Procedural Posture
Class 2 Application Under Pt 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Onsite Hearing; Final Orders
Outcome
Application granted regarding Trees 1 and 2 and refused regarding Trees 3-5.
Legal Topics
['damage to Tiled Verandah' 'tree Roots' 'reasonable Effort to Reach Agreement' 'removal of Trees' 'trees (disputes Between Neighbours) Act 2006']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment'] ['damage to Tiled Verandah' 'tree Roots' 'reasonable Effort to Reach Agreement' 'removal of Trees' 'trees (disputes Between Neighbours) Act 2006']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the applicant made reasonable effort to reach agreement with the tree owners under s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006.' "Whether each of Trees 1-5 has caused, is causing, or is likely in the near future to cause damage to the applicant's property under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of any trees after considering the matters in s 12 of the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The applicant made reasonable effort to reach agreement by writing to the respondents. On the balance of probabilities, roots of Tree 2 caused the raised tiles on the applicant's verandah and further damage was likely, and Tree 1 was likely to displace a boundary fence pillar in the near future. No damage or likely near-future damage was shown for Trees 3-5. Considering s 12 matters, the need to prevent further damage by Trees 1 and 2 outweighed their relatively minor privacy and amenity value, there was insufficient room for a root barrier, and there was no reason to shift the removal expense from the respondents.

Court Disposition

Application granted regarding Trees 1 and 2 and refused regarding Trees 3-5.

Orders

  • ['The application regarding Trees 1 and 2 is granted; the application regarding Trees 3-5 is refused.' "Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurances, to remove Trees 1 and 2 to...