Kavanagh v Henderson & anor [2015] NSWLEC 1437

Kavanagh v Henderson & anor [2015] NSWLEC 1437

There is insufficient evidence that roots from the fig tree have caused or are likely to cause damage to the applicant's property, and no causal connection has been established for cracking or plumbing issues. However, a large limb of the Spotted Gum, damaged and likely to fail, poses a threat to the applicant's garage and should be removed instead of removing the fig tree.

Parties
Applicant: Helena Kavanagh; First Respondent: Ralph Henderson; Second Respondent: Mary Henderson
Jurisdiction
Australia
Judgment Date
28 October 2015
Procedural Posture
Class 2 / Principal Judgment
Outcome
Application upheld with limited orders
Legal Topics
Trees (disputes Between Neighbours), Tree Root Damage, Orders for Pruning
Environmental Law Neighbourhood Disputes Trees (disputes Between Neighbours) Tree Root Damage Orders for Pruning

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Parties

Helena Kavanagh

Applicant

Ralph Henderson

First Respondent

Mary Henderson

Second Respondent

Procedural Posture

Class 2 / Principal Judgment

Legal Issues

  1. 1 Whether the fig tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property
  2. 2 Whether orders should be made for removal of the tree or pruning of specific branches

Ratio Decidendi

There is insufficient evidence that roots from the fig tree have caused or are likely to cause damage to the applicant's property, and no causal connection has been established for cracking or plumbing issues. However, a large limb of the Spotted Gum, damaged and likely to fail, poses a threat to the applicant's garage and should be removed instead of removing the fig tree.

Court Disposition

Application upheld with limited orders

Orders

  • The application is upheld.
  • Within 60 days, the respondents must engage and pay for a suitably qualified arborist to remove the damaged limb of the Spotted Gum back to the stem.