Kavanagh v Henderson
[2015] NSWLEC 1437
•28 October 2015
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
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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.
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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.
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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.
The tree
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The Port Jackson Fig (Ficus rubiginosa) is approximately 18 metres tall and has a relatively healthy crown. It has been pruned recently, with most limbs that were over Ms Kavanagh’s property now removed. A large wound in the stem closest to Ms Kavanagh’s property is the legacy of a limb failure many years ago, but there appears to be adequate growth of new wood around the internal decay.
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One branch of the fig tree growing over the Hendersons’ property is close to and rubs against the branch of an adjacent Spotted Gum. This has damaged both branches, but the Spotted Gum is damaged most and its limb overhangs Ms Kavanagh’s garage.
The applicant’s submissions
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Ms Kavanagh has had three arborists inspect the tree. Firstly, about seven years ago she was concerned that the tree might fall or drop limbs onto her property. The arborist's opinion then was that roots of the fig tree might damage her property. Following subsequent advice from two other arborists, one about 18 months ago and the other in June of this year, she became more concerned about the possibility of damage caused by roots, with the risk of tree or limb failure a secondary concern.
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Ms Kavanagh pointed out a crack in the concrete slab of the covered area behind her garage – a crack she says is likely to be caused by tree roots. She pointed to two cracked tiles outside her laundry door, some 10 metres from the tree, but stated that she is not sure if this cracking is caused by the tree. She says there is a cracked tile in her upstairs bathroom but also stated that this may be due to ‘wear and tear’. She pointed out some damp plywood shelving in the corner of her garage that she says is a result of water entering though roofing tiles broken by fallen limbs.
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Ms Kavanagh stated that if the Hendersons had pruned the tree when requested several years ago, she might not have made this application; but on the other hand said that she felt she would have anyway, as her primary concerns are now due to the possibility of root damage. She says she frequently hears loud cracking noises in the house at night and fears this may be due to subsidence caused by tree roots.
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Ms Kavanagh says sinks in her house are now draining more slowly than they were and thinks this might be due to roots blocking pipes, but has had no investigation done by a plumber.
The respondents’ submissions
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The Hendersons say they had the tree pruned to try to satisfy their neighbour. They value the tree and think it poses little threat. They say all roots growing across the boundary were severed when the slab on Ms Kavanagh’s property was constructed. The Hendersons adduced a photo of the crack in the concrete slab from a building inspection report (Exhibit 1) commissioned by Ms Kavanagh in 2009. They pointed out that the crack does not appear to have changed significantly since then. They say any subsidence of Ms Kavanagh's house is more likely due to general ground subsidence, as they live in a mine subsidence area. They say they applied to Lake Macquarie Council to remove the tree in 2009 but Council refused the application.
Findings
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Based on visual observations I was able to make from the ground during the onsite hearing, I do not think that the fig tree is likely to cause damage to Ms Kavanagh’s property in the near future, either by falling or by shedding large limbs. The wound on the stem has plenty of new growth and failure at this point seems unlikely.
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Regarding root damage, there must be more than a mere possibility that the tree has caused, is causing or is likely in the near future to cause damage. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J explained the need for a clear causal connection between the tree and any damage or likely damage. The condition of the concrete slab appears to be unchanged in six years. The crack is minor and does not require repair. I cannot be satisfied that roots have caused damage, and there are no signs that they are likely to cause damage in the near future.
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Similarly I cannot be satisfied that cracked tiles or slow-draining pipes are related to root growth in any way, as there is no evidence of this. Therefore it would clearly be inappropriate for orders to be made on those grounds.
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The rubbing limb of the Spotted Gum is significantly damaged and in my view may fail in the near future. It is a large limb and would be likely to damage Ms Kavanagh’s garage. The limb could be removed – removal of the entire tree is not required.
Orders
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Therefore the Court orders that:
The application is upheld.
Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to remove the damaged limb of the Spotted Gum back to the stem.
The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Given reasonable notice the applicant is to allow access for the works during reasonable hours of the day.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 30 October 2015
Kavanagh v Henderson [2015] NSWLEC 1437
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