Kacarovski v Stewart [2024] NSWLEC 1725

Kacarovski v Stewart [2024] NSWLEC 1725

The application succeeded in part. The respondents’ trees were a cause of damage to the applicant’s roof, ceiling and walls, engaging s 10(2)(a) Trees Act, and the applicant was awarded partial compensation. No relief was granted for damages outside the limitation period, claims without adequate causal evidence, or for mere encroachment or maintenance annoyance. The Court apportioned 75% of the fencing replacement cost to the respondents due to deliberate/negligent conduct. Annual pruning orders were made for the Murraya hedge to prevent severe sunlight obstruction. Other claims, including for glasshouse damage, paving, drain, CCTV, and compensation for general encroachment were denied.

Parties
Applicant: Tom Kacarovski; Second Applicant: June Williams; First Respondent: Douglas Stewart; Second Respondent: Andrea Stewart
Jurisdiction
Australia
Judgment Date
12 November 2024
Procedural Posture
Class 1 Dispute (land and Environment Court, Nsw) / Final Judgment and Orders After Hearing
Outcome
Application allowed in part. Compensation and various orders made as specified; several claims refused.
Legal Topics
Trees (disputes Between Neighbours), Dividing Fences, Compensation for Property Damage, Hedge Obstruction, Jurisdictional Requirements Under Trees Act, Apportionment of Fence Costs, Limitation Periods for Property Damage, Tree Maintenance Orders
Property Law Environmental Law Neighbour Disputes Trees (disputes Between Neighbours) Dividing Fences Compensation for Property Damage Hedge Obstruction Jurisdictional Requirements Under Trees Act +3 more

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Parties

Tom Kacarovski

Applicant

June Williams

Second Applicant

Douglas Stewart

First Respondent

Andrea Stewart

Second Respondent

Procedural Posture

Class 1 Dispute (land and Environment Court, Nsw) / Final Judgment and Orders After Hearing

Legal Issues

  1. 1 Whether damage to applicant's property was caused by respondents' trees under the Trees (Disputes Between Neighbours) Act 2006
  2. 2 Whether risk of injury to persons or further risk of damage existed from trees
  3. 3 Whether obstruction of sunlight or views constituted a ‘severe obstruction’ under Pt 2A of the Trees Act

Ratio Decidendi

The application succeeded in part. The respondents’ trees were a cause of damage to the applicant’s roof, ceiling and walls, engaging s 10(2)(a) Trees Act, and the applicant was awarded partial compensation. No relief was granted for damages outside the limitation period, claims without adequate causal evidence, or for mere encroachment or maintenance annoyance. The Court apportioned 75% of the fencing replacement cost to the respondents due to deliberate/negligent conduct. Annual pruning orders were made for the Murraya hedge to prevent severe sunlight obstruction. Other claims, including for glasshouse damage, paving, drain, CCTV, and compensation for general encroachment were denied.

Court Disposition

Application allowed in part. Compensation and various orders made as specified; several claims refused.

Orders

  • Respondents to pay applicant $1,815.00 by EFT within 30 days as compensation for tile, ceiling and wall repairs.
  • Respondents to contract a licenced fencing contractor to construct a boundary fence (1.8m tall, treated pine, approx. 41m long) along surveyed boundary, completion within 90 days.