Land and Environment Court
New South Wales
Medium Neutral Citation: Mamtschak v Kramer [2024] NSWLEC 1132 Hearing dates: 15 March 2024 Date of orders: 15 March 2024 Decision date: 15 March 2024 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders:
(1) The application is granted to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 30 days of the date of these orders:
(a) prune the tree to remove all deadwood greater than 40 mm in diameter, remove broken and hanging branches, and prune broken branch stubs back to branch collars;
(b) prune the tree to reduce branches over the applicant’s property back to suitable lateral branches, removing no more than 15% of total live crown mass.
(3) The works in Order (2) are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.
(4) The respondent is to give the applicant 7 days’ notice of the works in Order (2).
(5) The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.
(6) The exhibits are retained.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – risk of damage or injury – whether tree removal is required – orders for pruning
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12
Cases Cited: Texts Cited: Australian Standard, AS4373-2007 Pruning of amenity trees, 2007
Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016
Category: Principal judgment Parties: Lydia Mamtschak (Applicant)
Michael Kramer (Respondent)Representation: Counsel:
L Mamtschak (Self-represented) (Applicant)
S Mamari (Agent) (Respondent)
File Number(s): 2023/308031 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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COMMISSIONER: Lydia Mamtschak (the applicant) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders to remove or substantially prune a tree on the neighbouring Pymble property owned by Michael Kramer (the respondent). The hearing took place onsite, allowing the Court to inspect the trees and the surrounding environment.
Framework for this decision
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The Trees Act provides an avenue for a landowner to apply for orders to remedy, restrain or prevent damage to property on their land, or to prevent injury to any person, as a consequence of a tree that is situated on adjoining land (s 7 of the Trees Act).
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Under Pt 2 of the Trees Act, the Court must be satisfied of several matters before making orders:
10 Matters of which Court must be satisfied before making an order
(1) The Court…
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- AGLC
- Mamtschak v Kramer [2024] NSWLEC 1132
- Case
- [2024] NSWLEC 1132
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal were whether the tree constituted a nuisance and, if so, whether the applicant was entitled to an order that the tree be pruned. ACAT considered whether the tree constituted a private nuisance, which is an interference with a person’s use or enjoyment of land, or some right over, or in connection with it. The tribunal also considered whether an order should be made under section 93 of the Local Government Act 1993, which empowers the tribunal to make orders in relation to trees that are dangerous or that constitute a nuisance. The tribunal found that the tree constituted a nuisance because it was in a poor condition and posed a safety risk to the applicant’s property and family. The tribunal was satisfied that the tree constituted a nuisance and that an order should be made under section 93 of the Local Government Act 1993.
Accordingly, the tribunal made an order that Kramer engage and pay for an appropriately qualified arborist to prune the tree in accordance with relevant standards. The tribunal ordered that the works be carried out within 30 days, that the applicant be given 7 days’ notice of the works, and that the applicant allow all necessary access for the works to be completed. The exhibits were retained by the tribunal.
Orders
Orders of the court
The Court orders:
(1) The application is granted to the extent of the following orders.
(2) The respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 30 days of the date of these orders:
(a) prune the tree to remove all deadwood greater than 40 mm in diameter, remove broken and hanging branches, and prune broken branch stubs back to branch collars;
(b) prune the tree to reduce branches over the applicant’s property back to suitable lateral branches, removing no more than 15% of total live crown mass.
(3) The works in Order (2) are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.
(4) The respondent is to give the applicant 7 days’ notice of the works in Order (2).
(5) The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.
(6) The exhibits are retained.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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