Kitching v Shelley & anor [2016] NSWLEC 1036

Kitching v Shelley & anor [2016] NSWLEC 1036

The roots from the Weeping Fig have contributed to the condition of the fencing panel, satisfying s10(2) and enlivening the Court's jurisdiction. There is ongoing and likely future damage to the fence. Removal of the tree is necessary as no viable solution (such as root barrier) would allow tree retention while preventing future damage.

Jurisdiction
Australia
Judgment Date
10 February 2016
Procedural Posture
Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Judgment
Outcome
Application upheld in part
Legal Topics
['tree Disputes' 'neighbour Disputes' 'remedies for Property Damage']
['property Law' 'environmental Law'] ['tree Disputes' 'neighbour Disputes' 'remedies for Property Damage']

Case Brief

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Procedural Posture

Application Under Trees (disputes Between Neighbours) Act 2006 (nsw) / Final Judgment

Legal Issues

  1. 1 ["Whether the tree has caused, is causing, or is likely to cause damage to the applicant's property" 'Whether the tree is likely to cause injury to a person' 'What orders should be made regarding removal of the tree and roots']

Ratio Decidendi

The roots from the Weeping Fig have contributed to the condition of the fencing panel, satisfying s10(2) and enlivening the Court's jurisdiction. There is ongoing and likely future damage to the fence. Removal of the tree is necessary as no viable solution (such as root barrier) would allow tree retention while preventing future damage.

Court Disposition

Application upheld in part

Orders

  • ["The application to remove the Ficus benjamina (Weeping Fig) located in the rear eastern corner of the respondents' property is upheld." "The application to remove the woody roots breaching the ground surface on the applicant's property is dismissed." 'Within 60 days, respondent is to engage and pay for an AQF...