Schellnack v Burrows [2023] NSWLEC 1717

Schellnack v Burrows [2023] NSWLEC 1717

There was evidence that branches from Trees 4-10 overhanging the applicant's roof caused damage and posed ongoing risk; removal of all trees would cause significant environmental and amenity impact, so ordered removal of the dead tree and specified pruning of others to mitigate future damage and risk. Maintenance regime with annual risk assessment and pruning is sufficient to address foreseeable risks and aligns with statutory and case law principles.

Parties
Applicant: Joan Schellnack; First Respondent: Roger Burrows; Second Respondent: Anne Burrows
Jurisdiction
Australia
Judgment Date
28 November 2023
Procedural Posture
Tree Dispute (class 2) / Principal Judgment
Outcome
Partial orders for removal and pruning of trees; compensation withdrawn.
Legal Topics
Tree Disputes Between Neighbours, Damage to Property From Trees, Pruning and Removal Orders, Duty of Care Regarding Trees
Property Law Environmental Law Tree Disputes Between Neighbours Damage to Property From Trees Pruning and Removal Orders Duty of Care Regarding Trees

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Parties

Joan Schellnack

Applicant

Roger Burrows

First Respondent

Anne Burrows

Second Respondent

Procedural Posture

Tree Dispute (class 2) / Principal Judgment

Legal Issues

  1. 1 Whether trees on the respondents' property caused or are likely to cause damage to the applicant's property
  2. 2 Whether trees are likely to cause injury to any person
  3. 3 Appropriate remedial orders regarding tree removal or pruning

Ratio Decidendi

There was evidence that branches from Trees 4-10 overhanging the applicant's roof caused damage and posed ongoing risk; removal of all trees would cause significant environmental and amenity impact, so ordered removal of the dead tree and specified pruning of others to mitigate future damage and risk. Maintenance regime with annual risk assessment and pruning is sufficient to address foreseeable risks and aligns with statutory and case law principles.

Court Disposition

Partial orders for removal and pruning of trees; compensation withdrawn.

Orders

  • Respondents to employ AQF level 3 arborists to remove dead Eucalyptus Tree 3 within 60 days of order.
  • Respondents to employ arborists to prune all dead branches (diameter >15mm) from Trees 4-10 over applicant's land within 60 days.