Haigh v Rothwell Summary

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:

AS 4373-2007 Pruning of Amenity Trees

NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);

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:

AS 4373-2007 Pruning of Amenity Trees

NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);

___________________

J S Murrell
Commissioner of the Court
ljr

___________________

P Thyer

Acting Commissioner of the Court

This case involves a dispute between neighbours over a tree. The applicant, Garnet and Christine Haigh, brought the case against Dr Sharyn Rothwell, the respondent, who is their neighbour. The dispute revolves around the maintenance and inspection of a tree situated on Dr Rothwell's property, which the applicants allege poses a risk to their property. The case was heard in the Land and Environment Court of New South Wales.

The central legal issue before the court was the variation of court orders issued earlier concerning the maintenance and inspection of the tree. The applicants had previously sought and obtained orders that required the tree to be pruned and inspected annually. The respondent, however, raised concerns about the feasibility of conducting certain inspections, particularly a Picus Sonic Tomograph, due to access limitations on the site. The court had to consider whether the orders should be varied to accommodate these concerns.

The court reviewed evidence from the respondent's arborist, who highlighted the impracticalities of using certain inspection methods on the site. Given this evidence, the parties agreed to amend the previous orders. Specifically, they agreed to delete the requirement for a written report on the structural integrity of the tree, opting instead for an annual visual inspection during the pruning process. Consequently, the court varied the previous orders in line with these agreements, ensuring that the tree would still be adequately maintained and inspected, while also addressing the practical difficulties highlighted by the respondent's arborist.

The final orders of the court retained the requirement to keep the tree, mandated the annual removal of deadwood by a qualified arborist, and specified that inspections should occur during the pruning process each year. The costs of these inspections and maintenance were to be borne by the respondent, and all work was to be conducted in compliance with relevant standards and codes. The applicants were required to grant access to their property for these purposes, with work to be carried out at reasonable times and with reasonable notice.

Haigh v Rothwell

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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)