Stack v Kahler (No 2) [2023] NSWLEC 1268

Stack v Kahler (No 2) [2023] NSWLEC 1268

The respondent, as owner of the tree principally on their land, had fulfilled their duty of care by acting according to professional arborist advice and attempting to facilitate pruning. The applicants could have taken their own reasonable steps to mitigate risk. As such, the application to remove or prune the tree was upheld as per previous pruning orders, but compensation was refused as the respondent was not negligent and had managed the risk reasonably.

Jurisdiction
Australia
Judgment Date
01 June 2023
Procedural Posture
Trees (disputes Between Neighbours) – Pt 2 Application / Final Judgment and Orders After Supplementary Submissions and Boundary Survey
Outcome
Application to remove or prune the tree upheld to the extent of prior pruning order; application for compensation refused.
Legal Topics
['tree Disputes' 'boundary Trees' 'compensation for Damage' 'pruning/removal Orders']
['environmental Law' 'property Law'] ['tree Disputes' 'boundary Trees' 'compensation for Damage' 'pruning/removal Orders']

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Procedural Posture

Trees (disputes Between Neighbours) – Pt 2 Application / Final Judgment and Orders After Supplementary Submissions and Boundary Survey

Legal Issues

  1. 1 ['Whether orders should be made for the removal or pruning of a boundary tree on the respondent’s land' 'Whether compensation should be ordered for property damage allegedly caused by the tree' 'Whether further or ongoing management orders are required']

Ratio Decidendi

The respondent, as owner of the tree principally on their land, had fulfilled their duty of care by acting according to professional arborist advice and attempting to facilitate pruning. The applicants could have taken their own reasonable steps to mitigate risk. As such, the application to remove or prune the tree was upheld as per previous pruning orders, but compensation was refused as the respondent was not negligent and had managed the risk reasonably.

Court Disposition

Application to remove or prune the tree upheld to the extent of prior pruning order; application for compensation refused.

Orders

  • ["The application to remove or prune the tree is upheld to the extent of the Court's pruning order (Order 1) made on 23 December 2022." 'The application for compensation is refused.']