Krauth v Schneider [2017] NSWLEC 1517

Procedural Posture

Class 2 Application Pursuant to S 7 Part 2 of the Trees (disputes Between Neighbours) Act 2006 / On Site Hearing and Final Orders

Legal Issues

1. 1 ["Whether the dead Eucalyptus saligna on the respondent's land had caused, was causing, or was likely in the near future to cause damage to the applicant's property, or was likely to cause injury to any person under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006." 'Whether orders should be made for removal of the tree.' 'Whether compensation should be ordered for alleged roof, ceiling and fence damage.' 'Whether the applicant could recover legal fees in the Class 2 application.']

Ratio Decidendi

The jurisdictional tests in s 10(2) were met because the tree was dead, would gradually decay and collapse if left, had caused some damage to the dividing fence, and further branch failure could in the near future cause damage to the applicant's dwelling and potentially cause injury. Orders were therefore warranted for removal of the upper canopy of the tree. Compensation was refused because the evidence did not substantiate that the roof and ceiling damage was caused by the respondent's tree, the applicant had not advised the respondent of the alleged roof damage at the time, and the fence replacement claim appeared to relate to vegetation other than the tree the subject of the...

Court Disposition

Application granted in part; tree removal ordered and compensation refused.

Orders

• ["Within 30 days of the date of these orders, the respondent (or his agent), is to engage and pay for an experienced and appropriately insured arborist with a minimum qualification of AQF level 3 in Arboriculture to remove the dead Sydney Blue Gum at the rear of the respondent's property to a point below the lowest...