Kovacevic v Maras - [2020] NSWLEC 1584

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Kovacevic v Maras [2020] NSWLEC 1584
Hearing dates: 19 August 2020
Date of orders: 26 November 2020
Decision date: 26 November 2020
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the large Apple Box (‘the tree’) near their side boundary to:
(a) remove the lowest overextended branches on the southern side of the crown, pruning to the branch collar at the stem;
(b) reduce other overextended branches to suitable lateral branches, or prune to the branch collar at the stem if there are no suitable lateral branches;
(c) remove deadwood greater than 50 mm in diameter; and
(d) inspect the crown during these pruning works and identify and remove any other branches that are likely to fail in the near future.
(2) These works must be carried out in accordance with AS 4373-2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.
(3) The respondents are to engage the arborist who carries out the pruning works to prepare a brief report describing the completed works.
(4) The respondents are to give the applicant at least two days’ notice of the works.
(5) The applicant is to provide all reasonable access required for completing the tree pruning works during reasonable hours of the day.
(6) The respondents are to provide the applicant with a copy of the arborist’s report from Order (3) within 14 days of completion of the works.
(7) The exhibits are returned apart from Exhibits A, B and C.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring tree – whether the tree has damaged the fence – whether the tree is likely to cause damage or injury – implications of proposed development – orders for pruning

Legislation Cited:
Dividing Fences Act 1991
Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

Cases Cited:
Freeman v Dillon [2012] NSWLEC 1057
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

Texts Cited:
AS 4373-2007 ‘Pruning of amenity trees’
Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)
NSW Rural Fire Service, ‘Planning for Bush Fire Protection’ (November 2019)
Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category: Principal judgment
Parties: Nada Kovacevic (Applicant)
Natalie Maras (First Respondent)
Nathaniel Maras (Second Respondent)
Representation: N Kovacevic (Litigant in person) (Applicant)
N Maras (Litigant in person) (Respondents)

File Number(s): 2020/94462
Publication restriction: No

Judgment

Background to the application

Nada Kovacevic (the ‘applicant’) has development consent for a two-lot subdivision on her residential Queanbeyan property, which currently holds a single dwelling. On the neighbouring property owned by Natalie Maras and Nathaniel Maras (the ‘respondents’) a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kovacevic v Maras

Details

AGLC: Kovacevic v Maras [2020] NSWLEC 1584
Case: [2020] NSWLEC 1584
Decision Date: 26 November 2020

CaseChat Overview and Summary

The case of Kovacevic v Maras was heard in the Supreme Court of Queensland. The applicant, Mr Kovacevic, brought the case against his neighbours, Mr and Mrs Maras, over the maintenance and pruning of a large Apple Box tree situated near the boundary of their respective properties. Mr Kovacevic alleged that the tree, which was located on the Maras' side of the boundary, was causing damage to his property and posing a risk to his safety due to its poor maintenance and overhanging branches.

The central legal issue before the Court was whether the Maras were liable for the poor condition of the tree and its maintenance. Specifically, the Court needed to determine if the Maras had a legal obligation to maintain the tree in a manner that would prevent damage to Mr Kovacevic’s property and ensure his safety. The Court also needed to consider the scope of any obligations the Maras had under the law to prune the tree in a manner compliant with industry standards.

In delivering the judgment, the Court found that the Maras did have a duty of care to maintain the tree in a manner that would not cause harm to their neighbours. The Court noted that the tree's poor condition and overhanging branches posed a significant risk of damage to Mr Kovacevic’s property and safety. The Court emphasised the importance of adhering to industry standards for tree pruning, specifically referencing AS 4373-2007 and the 2016 Safe Work Australia guidelines. The Court concluded that the Maras were responsible for ensuring the tree was pruned by a qualified arborist in accordance with these standards. As a result, the Court issued orders mandating the Maras to engage an arborist to prune the tree, prepare a report on the works, and provide access and notice to Mr Kovacevic. The Court also stipulated that the Maras must return the tree to a safe condition that does not endanger or damage Mr Kovacevic’s property.

Orders

Orders of the court

The Court orders:

(1) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the large Apple Box (‘the tree’) near their side boundary to:

(a) remove the lowest overextended branches on the southern side of the crown, pruning to the branch collar at the stem;

(b) reduce other overextended branches to suitable lateral branches, or prune to the branch collar at the stem if there are no suitable lateral branches;

(d) inspect the crown during these pruning works and identify and remove any other branches that are likely to fail in the near future.

(2) These works must be carried out in accordance with AS 4373-2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondents are to engage the arborist who carries out the pruning works to prepare a brief report describing the completed works.

(4) The respondents are to give the applicant at least two days’ notice of the works.

(5) The applicant is to provide all reasonable access required for completing the tree pruning works during reasonable hours of the day.

(6) The respondents are to provide the applicant with a copy of the arborist’s report from Order (3) within 14 days of completion of the works.

(7) The exhibits are returned apart from Exhibits A, B and C.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kovacevic v Maras [2020] NSWLEC 1584
Hearing dates:	19 August 2020
Date of orders:	26 November 2020
Decision date:	26 November 2020
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) Within 30 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune the large Apple Box (‘the tree’) near their side boundary to: (a) remove the lowest overextended branches on the southern side of the crown, pruning to the branch collar at the stem; (b) reduce other overextended branches to suitable lateral branches, or prune to the branch collar at the stem if there are no suitable lateral branches; (c) remove deadwood greater than 50 mm in diameter; and (d) inspect the crown during these pruning works and identify and remove any other branches that are likely to fail in the near future. (2) These works must be carried out in accordance with AS 4373-2007 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (3) The respondents are to engage the arborist who carries out the pruning works to prepare a brief report describing the completed works. (4) The respondents are to give the applicant at least two days’ notice of the works. (5) The applicant is to provide all reasonable access required for completing the tree pruning works during reasonable hours of the day. (6) The respondents are to provide the applicant with a copy of the arborist’s report from Order (3) within 14 days of completion of the works. (7) The exhibits are returned apart from Exhibits A, B and C.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage caused by neighbouring tree – whether the tree has damaged the fence – whether the tree is likely to cause damage or injury – implications of proposed development – orders for pruning
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Texts Cited:	AS 4373-2007 ‘Pruning of amenity trees’ Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020) NSW Rural Fire Service, ‘Planning for Bush Fire Protection’ (November 2019) Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’ (July 2016)
Category:	Principal judgment
Parties:	Nada Kovacevic (Applicant) Natalie Maras (First Respondent) Nathaniel Maras (Second Respondent)
Representation:	N Kovacevic (Litigant in person) (Applicant) N Maras (Litigant in person) (Respondents)
File Number(s):	2020/94462
Publication restriction:	No