Kolaroski v Vavayis [2021] NSWLEC 1258

Kolaroski v Vavayis [2021] NSWLEC 1258

The evidence did not establish that the applicants suffered a significant loss due to the alleged tree-caused damage to their path, as damage likely preexisted their ownership or was due to multiple factors; damage to the fence was attributable to the respondents’ trees and requires repair. Regarding the Part 2A application, the applicants did not lose views previously enjoyed, as any severe obstruction existed when they purchased the property; consequently, no orders could be made under Part 2A.

Jurisdiction
Australia
Judgment Date
19 May 2021
Procedural Posture
Trees (disputes Between Neighbours) Act 2006 Civil Application / Principal Judgment
Outcome
Pt 2A application refused; fence repair ordered; Pt 2 application otherwise refused.
Legal Topics
['tree Disputes' 'damage to Property' 'obstruction of View' 'repairs to Boundary Fence']
['environmental Law' 'property Law'] ['tree Disputes' 'damage to Property' 'obstruction of View' 'repairs to Boundary Fence']

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Procedural Posture

Trees (disputes Between Neighbours) Act 2006 Civil Application / Principal Judgment

Legal Issues

  1. 1 ['Whether trees on the respondents’ property have caused damage to the applicants’ property (concrete path, boundary fence)' 'Whether the hedge formed by the trees severely obstructs views from the applicants’ dwelling such that orders under Part 2A should be made']

Ratio Decidendi

The evidence did not establish that the applicants suffered a significant loss due to the alleged tree-caused damage to their path, as damage likely preexisted their ownership or was due to multiple factors; damage to the fence was attributable to the respondents’ trees and requires repair. Regarding the Part 2A application, the applicants did not lose views previously enjoyed, as any severe obstruction existed when they purchased the property; consequently, no orders could be made under Part 2A.

Court Disposition

Pt 2A application refused; fence repair ordered; Pt 2 application otherwise refused.

Orders

  • ['The Pt 2A application is refused.' 'Within 60 days of the date of these orders the respondents are to engage a suitably experienced contractor to repair the boundary fence on the common boundary shared with the applicants so that the fence is returned to its vertical alignment alongside trees 4–18 in their cypress...