Mamtschak v Kramer [2024] NSWLEC 1132

Mamtschak v Kramer [2024] NSWLEC 1132

It is disproportionate to order removal of the tree as the risks of further branch failure or injury can be adequately managed by the pruning of overextended branches, removal of deadwood, and ongoing garden maintenance. The inconvenience described by the applicant does not justify removal when such risks can be mitigated reasonably.

Jurisdiction
Australia
Judgment Date
15 March 2024
Procedural Posture
Trees (disputes Between Neighbours) Act 2006, Pt 2 Application / Judgment and Orders After Hearing
Outcome
Application granted in part
Legal Topics
['tree Disputes Between Neighbours' 'pruning Versus Removal Orders' 'risk of Damage or Injury From Trees']
['environmental Law' 'property Law'] ['tree Disputes Between Neighbours' 'pruning Versus Removal Orders' 'risk of Damage or Injury From Trees']

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Procedural Posture

Trees (disputes Between Neighbours) Act 2006, Pt 2 Application / Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the tree should be removed or pruned due to risk of damage or injury' 'Whether the applicant made reasonable efforts to reach agreement with the respondent' 'Whether the risk posed by the tree warrants removal or could be managed through pruning and maintenance']

Ratio Decidendi

It is disproportionate to order removal of the tree as the risks of further branch failure or injury can be adequately managed by the pruning of overextended branches, removal of deadwood, and ongoing garden maintenance. The inconvenience described by the applicant does not justify removal when such risks can be mitigated reasonably.

Court Disposition

Application granted in part

Orders

  • ['Respondent to engage and pay for a suitably qualified arborist (minimum AQF level 3) with insurance to prune the tree as specified, within 30 days.' 'Prune to remove all deadwood greater than 40 mm in diameter, broken/hanging branches, and prune stubs back to branch collars.' "Reduce branches over applicant's...