Flanagan v Jennifer Louise Murray Kopecky [2017] NSWLEC 1406

Flanagan v Jennifer Louise Murray Kopecky [2017] NSWLEC 1406

The respondent, as current owner of the land from which the tree and its root system originated, is responsible under the Trees (Disputes Between Neighbours) Act 2006 for damage currently caused or likely to be caused by remaining roots and suckers, even if the main tree was removed after their acquisition. Orders are warranted to address ongoing damage and prevent future harm, but not for compensation for structural damage already present, as evidence did not support such an order against the respondent.

Parties
Applicant: Judith Flanagan; Respondent: Jennifer Kopecky
Jurisdiction
Australia
Judgment Date
26 July 2017
Procedural Posture
Tree Dispute (class 2) / Final Orders
Outcome
Orders made for poisoning and removing Liquidambar suckers and roots by respondent at respondent's expense; no order for compensation for property rectification.
Legal Topics
Tree Disputes, Damage to Property From Trees, Responsibility for Encroaching Tree Roots
Environmental Law Property Law Tree Disputes Damage to Property From Trees Responsibility for Encroaching Tree Roots

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Parties

Judith Flanagan

Applicant

Jennifer Kopecky

Respondent

Procedural Posture

Tree Dispute (class 2) / Final Orders

Legal Issues

  1. 1 Whether roots and suckers of the respondent's tree have caused or are likely to cause damage to the applicant's property
  2. 2 Whether the respondent is responsible for tree roots that existed prior to her ownership
  3. 3 What orders are appropriate under section 10(2) of the Trees (Disputes Between Neighbours) Act 2006

Ratio Decidendi

The respondent, as current owner of the land from which the tree and its root system originated, is responsible under the Trees (Disputes Between Neighbours) Act 2006 for damage currently caused or likely to be caused by remaining roots and suckers, even if the main tree was removed after their acquisition. Orders are warranted to address ongoing damage and prevent future harm, but not for compensation for structural damage already present, as evidence did not support such an order against the respondent.

Court Disposition

Orders made for poisoning and removing Liquidambar suckers and roots by respondent at respondent's expense; no order for compensation for property rectification.

Orders

  • Respondent to engage and pay a qualified Bush Regenerator to poison all Liquidambar suckers and woody roots identified by yellow paint on applicant's property between 15 and 31 October 2017.
  • Respondent to engage and pay an arborist to remove dead suckers and identified woody roots from applicant's front garden, by mechanical grinding or hand, as appropriate, between 7 and 21 December 2017.