Milton v Seymour

[2007] NSWLEC 492

Land and Environment Court

of New South Wales

CITATION:

Milton v Seymour [2007] NSWLEC 492

PARTIES:

APPLICANT
Arnold Vincent Milton

RESPONDENT
Dr John Seymour

FILE NUMBER(S):

20328 of 2007

CORAM:

Bly C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :- tree roots, damage, hedge pruning, new shrubs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

26/07/2007

EX TEMPORE JUDGMENT DATE:

26 July 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Milton, litigant in person

RESPONDENT
Mr D. Thompson, solicitor
of Colin & Thompson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C & Thyer AC

26 July 2007

20328 of 2007 Milton v Seymour

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") in relation to an application by Mr A Milton of 101A Northwood Road, Northwood seeking the removal or root pruning of 20 Leyland Cypress trees along the northern boundary of 107 Northwood Road, Northwood so as to avoid any further damage by tree roots to his property. Mr Milton also seeks reimbursement of costs associated with the removal of tree roots from his sewer pipes and the repair/partial replacement of those pipes. The owner of the property at 107 Northwood Road, Dr J Seymour was represented at the hearing by his solicitor Mr D. Thompson.

2 As a result of extensive discussions between the parties and the Commissioners and with the assistance of Mr D. Draper, Mr Milton's arborist, the parties reached an agreement in relation to the Cypress trees that is essentially reflected in the orders to be issued by the Court. These orders require the replacement of a number of these trees with more appropriate shrubs and the pruning and hedging of the remaining trees and the installation of a root barrier. We accept that the recommended Acmena smithii can be planted at 3 m intervals and no closer than 1 m from the boundary and that it will be unlikely that the roots of these shrubs will affect the existing sewerage pipes at 101A Northwood Road.

3 In the alternative, all of the Cypress trees can be retained subject to appropriate pruning and hedging and the installation of an extended root barrier

4 We are satisfied that once the requirements of these orders are brought into effect they will reasonably ensure that these trees or the proposed replacement shrubs will not cause further damage to Mr Milton's property.

5 In relation to Mr Milton's claim for reimbursement of costs associated with work carried out by his plumber on his sewer pipes, we accept the evidence provided by Dr Seymour that he has already paid the full amount of the original account for the clearing of tree roots from these pipes. Mr Milton now seeks a further payment of $2,200 as a partial reimbursement of the amount of $2,860 paid by him to his plumber. According to the plumber's account the work involves replacement of faulty pipes and associated works and the removal of a small amount of tree roots.

6 In the circumstances we are satisfied that Dr Seymour's payment for the clearance of tree roots (which are most likely from the Cypress trees) from these pipes comprises a reasonable and sufficient compensation. We do not accept that Dr Seymour should be required to pay for the replacement of faulty pipes, there being no evidence that the tree roots were predominantly responsible for the pipes becoming faulty, thus allowing root penetration.

ORDERS

7 In relation to the 20 Leyland Cypress trees (numbered 1 - 20 on the attached plan marked Appendix A) along the northern boundary of 107 Northwood Road, Northwood:

a. Trees 1 - 4 are to be top lopped so the trunk height is 2.5m and foliage allowed to regrow to 3m to enclose the top of each tree and be maintained at a height of 3m by ongoing and continuous pruning annually or more frequently as required. Foliage to be pruned regularly to provide clearance from the common side boundary between 101A and 107 Northwood Road.

b. Trees 18 - 20 are to be top lopped so the trunk height is 3.5m and foliage allowed to regrow to 4m to enclose the top of each tree and be maintained at a height of 4m by ongoing and continuous pruning annually or more frequently as required. Foliage to be pruned regularly to provide clearance from the common side boundary between 101A and 107 Northwood Road.

c. A deflecting root barrier to prevent root travel from trees 18 – 20 is to be provided in the form of a continuous high impact resistant plastic film located immediately up slope of the southeast corner of the rear of the garage at 101A Northwood Road in a garden bed behind a low stone wall for 3m from the common side boundary continuing into 107 Northwood Road for 3m at a 3m radius from the trunk of Tree 18 on its down slope side. The barrier is to extend to 1m deep or to rock if less than 1m. The finished root barrier is to protrude 100mm above existing ground to prevent burial and root growth breaching the device. Extant soil levels are to be reinstated. Where the 3m radius intersects the boundary the barrier is to continue along the boundary until it reaches the rear of the low wall up slope of the garage at 101A Northwood Road.

d. Trees 5 - 17 are to be removed and replaced with suitable shrubs to form a new hedge with a natural mature height of 3 - 4 metres (e.g. Acmena smithii ‘Hot Flush’ – Lilly Pilly cultivar) planted no less than 1.0 metres from the common boundary at 3m intervals.

e. In lieu of order (d) above and at the discretion of the owner of 107 Northwood Road, trees 5 - 17 can be retained and maintained in accordance with order (a) above. If this option is taken up the root barrier as described in (c) above is to be extended from Tree 19 to beyond Tree 5.

f. All trunk pruning and root barrier installation is to be carried out under the supervision of an arborist having qualifications of at least AQF Level 3.

g. All works and maintenance described in orders (a) - (f) above is to be at the equally shared cost of the owners of 107 and 101A Northwood Road, Northwood.

___________________ ____________________

A.K./ljr