Walker v Kelly [2024] NSWLEC 1136

Walker v Kelly [2024] NSWLEC 1136

Although the statutory requirements of s 10 were satisfied and a frond had caused damage, the risk and scale of harm were low, and it would not be reasonable or proportionate to require removal of the trees or compensation given the amenity they provide and the infrequency and minor nature of past incidents.

Parties
Applicant: Alison Walker; Respondent: Amelia Kelly
Jurisdiction
Australia
Judgment Date
13 March 2024
Procedural Posture
Class 1 Trees (disputes Between Neighbours) / Extemporaneous Judgment at Hearing
Outcome
Application refused
Legal Topics
Trees (disputes Between Neighbours), Damage to Neighbouring Property, Reasonable Effort to Reach Agreement, Orders for Tree Removal or Compensation
Environment and Planning Law Trees (disputes Between Neighbours) Damage to Neighbouring Property Reasonable Effort to Reach Agreement Orders for Tree Removal or Compensation

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Parties

Alison Walker

Applicant

Amelia Kelly

Respondent

Procedural Posture

Class 1 Trees (disputes Between Neighbours) / Extemporaneous Judgment at Hearing

Legal Issues

  1. 1 Whether the applicant made a reasonable effort to reach agreement with the respondent regarding the trees
  2. 2 Whether a tree on the respondent's land caused or is likely to cause damage or injury under s 10 of the Trees (Disputes Between Neighbours) Act 2006
  3. 3 Whether an order for removal or compensation should be made under the Act

Ratio Decidendi

Although the statutory requirements of s 10 were satisfied and a frond had caused damage, the risk and scale of harm were low, and it would not be reasonable or proportionate to require removal of the trees or compensation given the amenity they provide and the infrequency and minor nature of past incidents.

Court Disposition

Application refused

Orders

  • The application is refused.