Krechkin v O'Hart [2011] NSWLEC 1266

Krechkin v O'Hart [2011] NSWLEC 1266

The tree had caused damage to the applicant's property and could continue to do so or cause injury, satisfying s 10(2), so removal was warranted. Although the tree was substantially on the respondents' land and they were responsible for it, the applicant's refusal of reasonable access delayed timely removal and contributed to the later roof damage and increased removal cost. The respondents were therefore required to arrange and pay for removal only up to a maximum of $2500, with the applicant to reimburse any excess, and compensation for roof and other damage was refused.

Jurisdiction
Australia
Judgment Date
07 September 2011
Procedural Posture
Class 2 Tree Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part; removal of tree ordered; compensation refused
Legal Topics
['removal of Dead Tree' 'damage to Garage Roof From Falling Branches' 'access for Arboricultural Works' 'apportionment of Tree Removal Costs' 'compensation for Tree Damage' 'compliance With Court Directions']
['trees Disputes Between Neighbours' 'property Damage' 'practice and Procedure'] ['removal of Dead Tree' 'damage to Garage Roof From Falling Branches' 'access for Arboricultural Works' 'apportionment of Tree Removal Costs' 'compensation for Tree Damage' 'compliance With Court Directions']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Class 2 Tree Application Under the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the dead Eucalyptus sp had caused, was causing, or was likely in the near future to cause damage to the applicant's property or injury to persons under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether the respondents should be ordered to remove the tree and bear the full cost of removal.' 'Whether the applicant should provide access from his property for quoting and tree removal works.' 'Whether the respondents should compensate the applicant for damage to the garage roof and any other property damage allegedly caused by falling branches.' "Whether the applicant's late affidavit should be admitted despite non-compliance with Court directions."]

Ratio Decidendi

The tree had caused damage to the applicant's property and could continue to do so or cause injury, satisfying s 10(2), so removal was warranted. Although the tree was substantially on the respondents' land and they were responsible for it, the applicant's refusal of reasonable access delayed timely removal and contributed to the later roof damage and increased removal cost. The respondents were therefore required to arrange and pay for removal only up to a maximum of $2500, with the applicant to reimburse any excess, and compensation for roof and other damage was refused.

Court Disposition

Application upheld in part; removal of tree ordered; compensation refused

Orders

  • ['The application to remove the tree is upheld.' 'Within 14 days of the orders, the respondents are to obtain 3 quotes for removal of the tree to a maximum height of 3m above ground and to ground level, with each height clearly itemised.' 'The quotes are to be obtained from AQF level 3 arborists with proof of public...