Haigh v Rothwell

[2009] NSWLEC 1394

Land and Environment Court

of New South Wales

CITATION:

Haigh v Rothwell [2009] NSWLEC 1394

PARTIES:

APPLICANT
Garnet and Christine Haigh

RESPONDENT
Dr Sharyn Rothwell

FILE NUMBER(S):

20441 of 2009

CORAM:

Murrell C - Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Orders varied by consent in accordance with Uniform Civil Procedure Rules

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

13 November 2009

EX TEMPORE JUDGMENT DATE:

13 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Garnet and Christine Haigh (litigant in person)

RESPONDENT
Dr Sharyn Rothwell (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C
Thyer AC

13 November 2009

20441 of 2009 Garnet and Christine Haigh v Dr Sharyn Rothwell

JUDGMENT

1 By Consent the orders in this matter issued by the Court on the 26th of August 2009 are varied in accordance with the Uniform Civil Procedure Rules, r 36.15(2).

2 By way of background the Court Orders of 26 August 2009 were as follows:

1. The tree is to be retained.
2. All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 31 October 2009, by an AQF Level 3 arborist;
3 Beginning in 2010, all deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree each year during July or August, by an AQF Level 3 arborist and at the same time a visual inspection of the tree is to be carried out including the area of damage at the stub above the main scaffold branch junction at about 10m above ground;
4. The above inspections and work carried out on the tree shall be at the respondent’s cost;
5. All climbing, investigation and work on the tree shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);
6 The applicant shall grant access over their property to carry out the ordered investigations and work on the tree;
7. The ordered work shall take place at reasonable times and on reasonable notice to the applicant.

3 This morning the Court received evidence on the technical and practical difficulties in undertaking a Picus Sonic Tomograph to determine the structural integrity of the junction between the two main lateral branches at the division of the trunk tree in the area of the first order scaffold branch junctions referred to in the previous Order 4.

4 The respondent’s arborist, Mr Taylor, who was independently recommended as a specialist trained in the use of tomographic equipment, raised the impracticalities of using such equipment on the subject site due to limited and constrained access. However, he has carried out a visual inspection of the subject tree and provided a report.

5 In the circumstances in the light of Mr Taylor’s expert evidence the parties agreed that Order 4 of the previous Court Orders should be deleted.

6 The applicant has agreed to the requirement of an annual visual inspection of the tree at the time the deadwood is removed from the tree every July/August. As such the parties agree that Order 3 be amended to include an annual visual inspection without the need for a written report.

7 Accordingly by consent the Orders made by the Court 26 August 2009, in respect of the property known as 170 Bridge Road, Glebe are varied pursuant to rule 36.15(2) of the Uniform Civil Procedure Rules 2005 and the Orders are amended as of today’s date to read as follows:

1. The tree is to be retained.
2. All deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree by 31 October 2009, by an AQF Level 3 arborist;
3 Beginning in 2010, all deadwood with a diameter greater than 20 mm shall be pruned and removed from the crown of the tree each year during July or August, by an AQF Level 3 arborist and at the same time a visual inspection of the tree is to be carried out including the area of damage at the stub above the main scaffold branch junction at about 10m above ground;
4. The above inspections and work carried out on the tree shall be at the respondent’s cost;
5. All climbing, investigation and work on the tree shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);
6 The applicant shall grant access over their property to carry out the ordered investigations and work on the tree;
7. The ordered work shall take place at reasonable times and on reasonable notice to the applicant.

___________________

J S Murrell
Commissioner of the Court
ljr

___________________

P Thyer
Acting Commissioner of the Court