Land and Environment Court New South Wales

• Medium Neutral Citation: Barnett v NSW Land & Housing Corporation [2011] NSWLEC 1033
• Hearing dates: 28 February 2011
• Decision date: 28 February 2011
• Jurisdiction: Class 2
• Before: Moore SC

Decision

1. The application with respect to trees 1 to 3 is dismissed;

2. The respondent is ordered to remove the Monterey Pine tree ( Pinus radiata ) located furthest from the street and all its roots on the applicants' property within six months of the date of these orders;

3. The removal in (2) Is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

4. The applicants are to provide access to their property for the purposes of the removal of the tree in (2)( if access is required) with such access to be on reasonable notice to the applicants, at a reasonable hour of the day and with the applicants having the opportunity to supervise that access; and

5. If the applicants re-concrete their driveway within three months after the date of removal of tree 4 and serve upon the respondent, within 28 days of the completion of the re-concreting of their driveway, a receipted invoice for the cost of the re-concreting of their driveway, the Department is to pay the applicants the sum of $275 within 28 days of the service upon the Department of the receipted invoice.

• Catchwords: TREES (NEIGHBOURS)
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: M & P Barnett (applicant); NSW Land & Housing Corporation (respondent)
• Representation: Applicants in person; Ms J Isgro (respondent)
• File Number(s): 20924 of 2010

Judgment

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

1 This application at North Katoomba concerns four Monterey Pine trees ( Pinus radiata ) located on or in the vicinity of the common boundary between the applicants' property and the respondent department's property.

2 As part of the preparation for the hearing, respondent, the NSW Land & Housing Corporation (the Department), was directed to survey the location of the trees compared to the boundary between the two properties. The reason that this direction was made is the consequence of s 4(3) of the Trees (Disputes Between Neighbours) Act 2006 (the Act) that requires that I be satisfied that the trees that are the subject of the application are situated wholly or principally on the adjoining property .

3 The Department has filed a survey report, by Mr David Eaton, that shows that, of the four trees subject of the application, only one of them is located principally on the Department's property. His survey shows that the first three trees from the street frontage are located principally on the applicants' property and thus are outside the jurisdiction of the Court. The fourth of the trees - T 4 (that is the one that is furthest from the street) is located principally on the Department's property. This is illustrated on the edited survey plan below (with tree numbers inserted by me:

 

 

4 I have carefully examined the nature of the tree roots that are exposed in the vicinity of T 4 and it is clear to me that some of them (although not all of them) are roots from T 4. These roots clearly constitute a trip hazard for persons who might walk in the vicinity.

5 In addition, it is clear to me that at least one of the four segments of the applicants' driveway has been lifted and damaged by tree roots. The roots of T 4 must, on the basis of my observation of the location of the roots, have contributed to that damage significantly.

6 The consequence of that with respect to the driveway on the first of the tests under section 10(2)(a) of the Act has been satisfied - that is that the tree, T 4, has caused damage to the applicants' driveway. Second, this tree itself, with respect to the test in s 10(2)(b), does constitute a likely cause of injury to persons walking in the vicinity.

7 It is pertinent to observe, in this context, however, that there are other trip hazards in the vicinity that are occasioned by roots that are obviously roots from either T 2 (that is the second one in from the street) or T 3 (that is the third one in from the street). I have no jurisdiction with respect to those trees at this morning's hearing as they are not situated wholly or principally on the adjoining property .

8 Ms Isgro, a solicitor employed by the Department, has indicated that the Department does not resist an order for the removal of T 4 nor does the Department resist an order that it make a partial contribution to the replacement of the driveway.

9 Mr Barnett has indicated to me that he has a quotation of $1100 for the replacement of the driveway slabs from the front boundary through to his garage. I am satisfied that the elements of the slabs that have been lifted or cracked as a result of the interference by relevant tree roots (that is, predominantly, in my assessment, by those of T 4) is one quarter of the driveway.

10 I have also discussed with the parties and the time within which it would be appropriate to order the removal of T 4 and whether or not the parties wish to consider entering into an arrangement between themselves for the removal of trees T 1 to T 3.

11 As a consequence of all the foregoing and particularly in light of the trip hazards that are occasioned by the tree roots of T 4 and by the lifting of the concrete slab by that tree, I am satisfied that it is appropriate to order the removal of T 4. I am satisfied under the circumstances, further, that I should allow a considerable period of time (six months in all) for that to occur so that the parties have the opportunity to discuss an arrangement concerning the other three trees and the possibility of needing a cherry picker and extensive access for the removal of all the trees (as these are very old pine trees are in excess of 25 m or so in height).

12 As a consequence, it is also necessary, given the location of the canopy, to order access to Mr and Mrs Barnett's property for the purposes of removal (if that is required by the arborist who undertakes the removal) and that that access is to be on reasonable notice a reasonable hour of the day and with Mr and Mrs Barnett having the opportunity to supervise that access.

13 As a consequence of all of the foregoing, the orders of the Court are:

(1) The application with respect to trees 1 to 3 is dismissed;

(2) The respondent is ordered to remove the Monterey Pine tree ( Pinus radiata ) located furthest from the street and all its roots on the applicants' property within six months of the date of these orders;

(3) The removal in (2) Is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

(4) The applicants are to provide access to their property for the purposes of the removal of the tree in (2)( if access is required) with such access to be on reasonable notice to the applicants, at a reasonable hour of the day and with the applicants having the opportunity to supervise that access; and

(5) If the applicants re-concrete their driveway within three months after the date of removal of tree 4 and serve upon the respondent, within 28 days of the completion of the re-concreting of their driveway, a receipted invoice for the cost of the re-concreting of their driveway, the Department is to pay the applicants the sum of $275 within 28 days of the service upon the Department of the receipted invoice.

Tim Moore

Senior Commissioner

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Decision last updated: 03 March 2011