Smith v Patel Family Australia Pty Ltd [2023] NSWLEC 1194

Smith v Patel Family Australia Pty Ltd [2023] NSWLEC 1194

Given the tree has caused damage and poses ongoing risk of further damage and injury, and the applicant made reasonable efforts to resolve the issue, removal is reasonable and compensation appropriate under the Trees Act. The proposed orders are within the Court's power and address the risk and loss sustained.

Jurisdiction
Australia
Judgment Date
20 April 2023
Procedural Posture
Class 2 / Final Hearing and Consent Orders
Outcome
Application granted. Orders made for removal and mulching of tree, compensation to applicant, and replanting of native eucalypts.
Legal Topics
['tree Disputes' 'neighbouring Property Damage' 'compensation' 'tree Removal Orders']
['environmental Law' 'property Law'] ['tree Disputes' 'neighbouring Property Damage' 'compensation' 'tree Removal Orders']

Case Brief

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Procedural Posture

Class 2 / Final Hearing and Consent Orders

Legal Issues

  1. 1 ['Whether the Court can make the proposed consent orders under the Trees (Disputes Between Neighbours) Act 2006 for the removal of a neighbouring hazardous tree and compensation for damage caused.' 'Whether reasonable effort to reach agreement and mediation was attempted by the applicant as required under s 10 of the Act.']

Ratio Decidendi

Given the tree has caused damage and poses ongoing risk of further damage and injury, and the applicant made reasonable efforts to resolve the issue, removal is reasonable and compensation appropriate under the Trees Act. The proposed orders are within the Court's power and address the risk and loss sustained.

Court Disposition

Application granted. Orders made for removal and mulching of tree, compensation to applicant, and replanting of native eucalypts.

Orders

  • ['The application is granted.' "Within 30 days, respondent to engage 'Above the Rest Tree Care' to remove and mulch the tree identified in the arborist report dated 28 September 2022." "Within 24 hours, respondent to transfer $4,850.00 to applicant's solicitor's trust account and irrevocably authorise payment to...