Land and Environment Court
New South Wales
Medium Neutral Citation: Kacarovski v Stewart [2024] NSWLEC 1725 Hearing dates: 23 July 2024 Date of orders: 12 November 2024 Decision date: 12 November 2024 Jurisdiction: Class 1 Before: Douglas AC Decision: The Court orders that:
(1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs.
(2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders.
(3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant’s maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor.
(4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00.
(5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level.
(6) The applicant shall grant access to the respondents’ chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours’ notice by email.
(7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves falling onto roofs and into gutters – alleged severe obstruction of sunlight and views
Legislation Cited: Dividing Fences Act 1991 ss 4, 7, 11, 13
Limitation Act 1969 ss 14(1)(d)
Trees (Disputes Between Neighbours) Act 2006,
Pt 2, ss 7, 9, 10, 12,
Pt 2A ss 14A, 14B, 14C, 14D, 14E, 14F
Cases Cited: Ball v Bahramali & Anor [2010] NSWLEC 1334
Continue reading Kacarovski v Stewart
Sign in free to access the full text
- AGLC
- Kacarovski v Stewart [2024] NSWLEC 1725
- Case
- [2024] NSWLEC 1725
- Decision Date
CaseChat Overview and Summary
The court considered evidence regarding the damage to the applicant's property, finding that the respondents' tree had caused significant damage to tiles, ceilings, and walls. The court assessed the necessity of the proposed fence, determining it was reasonable to construct a 1.8 m tall, treated pine fence along the surveyed boundary to prevent future damage. The court also found that regular pruning of the Murraya hedge was necessary to prevent it from encroaching on the applicant's property. The court ordered the respondents to compensate the applicant for the repair costs, construct the fence according to the Draper Fencing quote, and undertake regular hedge maintenance. The court set out a detailed apportionment of costs for the fence and established a framework for ongoing maintenance of the property boundary.
In its orders, the court mandated that the respondents pay the applicant $1815.00 for the cost of repairs, construct a fence according to the Draper Fencing quote, and prune the hedge to a maximum height of 1.6 m. The court also stipulated that the respondents must provide the applicant with a paid invoice for the fencing works, upon which the applicant must pay 25% of the total cost or $2,274.00, whichever is greater. Additionally, the court ordered the respondents to grant access to the applicant's chosen contractors to perform the works, ensuring all activities comply with safety guidelines and are conducted during reasonable hours.
Orders
Orders of the court
The Court orders that:
(1) Within 30 days of the date of these orders, the respondents shall pay the applicant $1815.00 (50% of $3630.00) by Electronic Fund Transfer (EFT) as compensation for the cost of tile, ceiling and wall repairs.
(2) The respondents, initially at their expense, shall contract Draper Fencing or another licenced fencing contractor with all appropriate insurance, to construct a 1.8 m tall, treated pine fence approximately 41 m long, along the surveyed boundary between the southern end of the common front fence and the common rear boundary corner, in accordance with the specifications of the Draper Fencing Quote Number QU-1301 of 25 January 2024, for $8,663.60. The works shall be completed within 90 days of the date of these orders.
(3) The $8,663.60 Draper Fencing quote shall form the basis for apportionment of cost between the parties, but a 5% allowance shall be made for inflation as the quote expired in February 2024 and will likely need to be updated. Therefore, the maximum base price for apportionment of cost shall be $8,663.60 plus $443.18 = $9,096.78 and the applicant’s maximum liability shall be 25% of the maximum base price = $2,274.00, even if the respondents choose a more expensive contractor.
(4) Within 7 days of the completion of the fencing works, the respondents shall email the applicant a copy of an itemised paid invoice for the fencing works. Within 7 days of receipt of the paid invoice, the applicant shall pay the respondents by EFT; 25% of the total if the invoice total is less than $9,096.00, or, $2,274.00 if the invoice total is more than $9,096.00.
(5) In April 2025 and during April of each subsequent year, the respondents, at their expense, shall prune the height of the Murraya hedge in front of W2 to a maximum of 1.6 m above ground level.
(6) The applicant shall grant access to the respondents’ chosen licenced fencer or arborists to complete works or tidy the site, upon 72 hours’ notice by email.
(7) The tree works are to be undertaken in accordance with the guidelines of the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016, and all works shall be completed during reasonable daytime working hours.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.