Krechkin v O'Hart [2011] NSWLEC 1266

Land and Environment Court New South Wales

Medium Neutral Citation: Krechkin v O'Hart [2011] NSWLEC 1266 Hearing dates: 29 August 2011 Decision date: 07 September 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal of tree ordered; compensation refused Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; practice and procedure; dead tree; actions of the parties Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Vieira v Kaleski [2008] NSWLEC 159 Category: Principal judgment Parties: Mr W Krechkin (Applicant) Ms A O'Hart (First Respondent) Mr S O'Hart (Second Respondent) Representation: Applicant: Mr W Krechkin (Litigant in person) Respondent: Ms A O'Hart (Litigant in person) File Number(s): 20517 of 2011

Judgment 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Bayview against the owners of a tree growing on an adjoining property. 2The applicant seeks orders for the removal of the tree at the respondents' expense. He also seeks a sum of $2420 for repairs to the roof of his garage, (this being a quote for the works). The applicant also seeks orders for compensation for " damage to any other property owned by the applicant caused by the falling branches from the said tree".

Procedural matters 3Before addressing the application I note a procedural issue that arose at the commencement of the hearing. On 18 July 2011, the parties in the matter participated in a telephone directions hearing. The written directions were sent via express post to their respective addresses. Court Direction #6 required the applicant to file and serve any further statements, affidavits, reports, photographs and any other documentation upon which he intended to rely by 10 August 2011. Direction #9 required the respondents to file any similar material and or alternative orders by 19 August. 4The respondents' material was filed with the Court on 19 August. On 25 August, the applicant filed an affidavit responding to the respondents' material. 5At the hearing the applicant was informed that the additional material did not comply with the directions of the Court, being too late, and would not be admitted into evidence but that he could make submissions on the respondents' material . I consider it would have been procedurally unfair to the respondents to allow the material into evidence. However I also note that the documentation did not add to the evidence already provided and was mainly historical in nature. 6The Land & Environment Court's - 'Practice Note - Class 2 Tree Applications' published on the Court's website clearly details the procedural matters to be considered by each of the parties. Paragraphs 14-22 relate to the preliminary hearing of tree applications, that is, the directions hearing. Paragraphs 27 and 28 cover 'applications to vary the Court's directions'. Therefore, had the applicant wished to vary the timetable, the Practice Notes set out the appropriate way in which that could have been achieved.