Kirkwood v Harvey [2009] NSWLEC 1292

Kirkwood v Harvey [2009] NSWLEC 1292

The application was refused because the applicant did not prove that the tree had caused, was causing, or was likely in the near future to cause damage to her property. The specialist reports did not substantiate their assumptions with evidence of roots, and the cracking was more likely due to the age of the house, normal movement and settling, additions and renovations, reactive soils, and wet and dry periods.

Jurisdiction
Australia
Judgment Date
28 August 2009
Procedural Posture
Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Ex Tempore Judgment After Hearing
Outcome
Application refused.
Legal Topics
['removal of a Tree' 'tree Roots and Alleged Property Damage' 'section 10(2) Threshold for Orders' 'section 12 Considerations']
['trees Disputes Between Neighbours' 'land and Environment'] ['removal of a Tree' 'tree Roots and Alleged Property Damage' 'section 10(2) Threshold for Orders' 'section 12 Considerations']

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Procedural Posture

Application Pursuant to S 7 of the Trees (disputes Between Neighbours) Act 2006 for Removal of a Tree / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the mature Celtis australis (Hackberry) on the respondent's property had caused, was causing, or was likely in the near future to cause damage to the applicant's property." 'Whether the Court should order removal of the tree under the Trees (Disputes Between Neighbours) Act 2006.']

Ratio Decidendi

The application was refused because the applicant did not prove that the tree had caused, was causing, or was likely in the near future to cause damage to her property. The specialist reports did not substantiate their assumptions with evidence of roots, and the cracking was more likely due to the age of the house, normal movement and settling, additions and renovations, reactive soils, and wet and dry periods.

Court Disposition

Application refused.

Orders

  • ['The application to remove the tree is refused.']