Atanasovski & anor v Sutu [2017] NSWLEC 1510

Atanasovski & anor v Sutu [2017] NSWLEC 1510

The Court was satisfied under s 10(2)(a) that a structural Mulberry root was a cause of cracking and lifting of the concrete garage floor and had displaced a panel of the dividing fence, justifying orders for removal of the Mulberry, Cestrum and Privet trees, stump grinding, root poisoning, fence reinstatement and a 70% respondent contribution to replacement of 15m2 of the garage slab. The Court was not satisfied that roots from the respondent's trees caused the driveway cracking and uplift, so that part of the claim was dismissed.

Jurisdiction
Australia
Judgment Date
15 September 2017
Procedural Posture
Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After Hearing
Outcome
Application allowed in part; orders made for tree removal, fence reinstatement and partial contribution to garage floor replacement; driveway claim dismissed.
Legal Topics
['damage by Tree Roots' 'tree Removal' 'rectification of Damage' 'dividing Fence' 'garage Floor Damage' 'driveway Damage' 'costs Jurisdiction']
['trees Disputes' 'property Damage' 'land and Environment Court Proceedings'] ['damage by Tree Roots' 'tree Removal' 'rectification of Damage' 'dividing Fence' 'garage Floor Damage' 'driveway Damage' 'costs Jurisdiction']

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Procedural Posture

Class 2 Application Under S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment and Orders After Hearing

Legal Issues

  1. 1 ["Whether trees on the respondent's adjoining land caused, are causing, or are likely in the near future to cause damage to the applicants' property within s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of the Mulberry, Cestrum and Privet trees and treatment of stumps and roots.' 'Whether the respondent should contribute to the cost of replacing the concrete garage floor.' "Whether roots from the respondent's trees caused cracking and uplift to the driveway." "Whether the displaced dividing fence panel should be reinstated at the respondent's expense." 'Whether a Commissioner could order reimbursement of the Class 2 application filing fee.']

Ratio Decidendi

The Court was satisfied under s 10(2)(a) that a structural Mulberry root was a cause of cracking and lifting of the concrete garage floor and had displaced a panel of the dividing fence, justifying orders for removal of the Mulberry, Cestrum and Privet trees, stump grinding, root poisoning, fence reinstatement and a 70% respondent contribution to replacement of 15m2 of the garage slab. The Court was not satisfied that roots from the respondent's trees caused the driveway cracking and uplift, so that part of the claim was dismissed.

Court Disposition

Application allowed in part; orders made for tree removal, fence reinstatement and partial contribution to garage floor replacement; driveway claim dismissed.

Orders

  • ["Within 30 days of the date of the orders, the respondent or his agent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Mulberry, Cestrum and all Privet from the rear of the respondent's property; the stumps are to be ground to a depth of 300mm and any...