Gillard v Best

[2007] NSWLEC 606

Land and Environment Court

of New South Wales

CITATION:	Gillard v Best [2007] NSWLEC 606
PARTIES:	APPLICANT B Gillard RESPONDENT J Best
FILE NUMBER(S):	20591 of 2007
CORAM:	Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	12 September 2007
EX TEMPORE JUDGMENT DATE:	12 September 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

THYER AC

12 September 2007

07/20591 B Gillard v J Best

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1. ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning one tree located in the front yard of a property at 56 Birdwood Drive, Blue Haven. The property is owned by Mr Best.

2. The tree is a Liquidambar (Liquidambar styraciflua) (the tree).

3. The application has been made by Mrs Gillard, the owner of 58 Birdwood Drive.

4. The application seeks orders that the tree be removed, and that compensation be made for damage to the driveway on 58 Birdwood Drive.

5. The relevant provisions of s 10(2)(a) and (b) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6. These tests are:

• Has the tree caused damage to the applicant’s property?
• Is the tree now causing damage to the applicant’s property?
• Is the tree likely in the near future to cause damage to the applicant’s property?
• Is the tree likely to cause injury to any person?

7. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

• Is the damage or risk sufficiently serious to warrant the Court intervening?
• If so, what should the Court order?
• Who should pay to carry out those orders?

8. I have examined the tree and have reached the following conclusions with respect to it.

9. It is a semi-mature tree approximately 10 m in height, with diameter of approximately 400 mm at 1.2 m above ground. It appears to be in good condition, with no evidence of instability.

10. Roots of the tree have been exposed on the neighbouring property at 58 Birdwood Drive, between the tree and the driveway. I observed that those roots were within 300 mm of the ground surface, and that roots with diameters of approximately 50 mm and 120 mm respectively extend under the concrete driveway.

11. I also observed that the 6 m long concrete driveway slab closest to the street was raised about 30 mm above the adjoining slab to the south, in the corner where the largest tree root extends under the first slab.

12. I further observed two crack lines that extend across the first slab of the driveway. These cracks arise where each of the two roots mentioned above extend under the slab. On this basis I am satisfied that the tree has caused damage, and that some intervention with the tree is appropriate.

13. Mr Best has advised that he dug a trench on his side of the fence in the first months of 2006 and cut roots of the tree to stop them causing any further damage to the driveway. Mrs Gillard agrees that that trenching and root pruning was carried out. Mr Best advised that he cut the trench approximately 0.5 m deep.

14. I note that the root pruning was carried out approximately 18 months ago, and that the tree has survived the summer of 2006-07 and the storms of mid 2007. On this basis I am satisfied that the tree can cope with the root pruning carried out on Mr Best's side of the fence. I therefore find that the tree should be allowed to remain as is Mr Best's wish.

15. I am concerned, however, that roots of this tree are likely to grow onto 58 Birdwood Drive in the future, and I am satisfied that further pruning should be done to avoid damage by those roots.

16. I therefore propose to require that roots of the tree should be pruned at intervals of not more than five years. The root pruning should be on Mr Best's side of the common boundary to a depth of 500 mm, extending from the front boundary to the front alignment of Mr Best's house. The root pruning should be done at Mr Best's expense.

17. I also propose to require that the roots of the Liquidambar tree, that are on 58 Birdwood Drive between the driveway and the common boundary, having a diameter of greater than 30 mm at the driveway, should be removed prior to installation of a new driveway. That work should be carried out by or under the supervision of Mr Best, at his expense. He should be given reasonable access, and notice of at least two weeks prior to the driveway work, in order to remove the tree roots.

18. I now turn to matters of compensation.

19. The applicant seeks compensation of $4,390 for replacement of the concrete driveway from the front boundary to the gates beside her house, a length of approximately 16 m.

20. The applicant also seeks compensation of $100 for the cost of a tree assessment report that identified the location and source of the tree roots.

21. I have been provided with information that the driveway was installed in approximately 1980, about 15 years before Mrs Gillard bought the property.

22. I measured the thickness of the concrete in a number of locations along its eastern edge, and in the centre of the width of the second slab. In all locations, I found the concrete to be approximately 80 mm thick.

23. Mrs Gillard had a section of the centre of the second slab removed during the hearing, and I observed that there was no reinforcing steel in that concrete.

24. I am therefore of the opinion that inadequate construction of the driveway has been a considerable cause of its failure.

25. I have also been advised that for a period from approximately 2000 to 2003 a truck with gross mass of up to 4 tonnes was regularly driven and parked on the driveway.

26. On the basis that the driveway was inadequately constructed; has been subjected to heavy vehicle use; and is in excess of 25 years old, I am satisfied that Mr Best should not be required to pay the full cost of replacing the driveway to the higher specifications of the current residential driveway standards.

27. I conclude that it is appropriate that Mr Best pay 30% of the lowest of the three quotes provided to the Court by the parties for replacement of the driveway to current standards. That amount is 30% of $3,465 being $1,039.50.

28. I also conclude that it is appropriate that Mr Best pay the cost of $100 for the tree assessment report.

29. Therefore, the orders of the Court will be that Mr Best is to pay Mrs Gillard the sum of $1,139.50 within 30 days of Mrs Gillard giving Mr Best a copy of the receipted account for full payment of the completed concrete driveway.

Acting Commissioner of the Court