Kavanagh v Henderson & anor [2015] NSWLEC 1437

Land and Environment Court New South Wales

Medium Neutral Citation: Kavanagh v Henderson & anor [2015] NSWLEC 1437 Hearing dates: 28 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage caused by tree roots; orders for tree pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Helena Kavanagh (Applicant) Ralph Henderson (First Respondent) Mary Henderson (Second Respondent) Representation: Helena Kavanagh, litigant in person (Applicant) Ralph Henderson, litigant in person (First Respondent) Mary Henderson, litigant in person (Second Respondent) File Number(s): 20656 of 2015

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. Ms Kavanagh ('the applicant') has lived at her Eleebana property for about eight years. A large fig tree stands on an adjacent property to her north, close to the common boundary. Due to her growing concerns regarding the tree damaging her property, Ms Kavanagh has applied to the Land and Environment Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for its removal. 2. The Hendersons ('the respondents') have owned the property on which the tree stands for about 47 years, and have lived there for 45 years. They say the tree was there at the outset of their occupancy and wish to retain it. 3. Before I can make any orders I must be satisfied, as stated at s 10(2) of the Trees Act, that the tree has caused, is causing, or is likely in the near future to cause, damage to Ms Kavanagh's property, or is likely to injure a person.