Sandford v Pearce

[2007] NSWLEC 464

Land and Environment Court

of New South Wales

CITATION:	Sandford v Pearce [2007] NSWLEC 464 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	Applicant: Peter & Gai Sandford Respondent: Robin & Margaret Pearce
FILE NUMBER(S):	20346 of 2007
CORAM:	Roseth SC - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- tree dispute
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	24/07/2007
EX TEMPORE JUDGMENT DATE:	24 July 2007
LEGAL REPRESENTATIVES:	Applicant in person Respondent in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC
Thyer AC

24 July 2007

20346 of 2007 Peter & Gai Sandford v Robin & Margaret Pearce

JUDGMENT

1 Senior Commissioner and Acting Commissioner: This is an application under s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees located at 27 Lower Almora Street, Mosman. The applicants are Mr and Mrs Sandford. They live at 25 Lower Almora Street adjacent to No 27, of which the owners are Mr and Mrs Pearce, the respondents in these proceedings.

2 The three trees involved are two Tallow-wood trees (Eucalyptus microcoriys) and a Chinese Elm (Ulmus parvifolia). For the Tallow-wood trees the applicants seek “elimination of danger and hence potential threat to life and property at No 25”, while for the Chinese Elm they seek removal. The respondents, Mr and Mrs Pearce, want to retain the Tallowood trees and have no objection to the removal of the Chinese Elm.

The Tallowood trees

3 We note that these trees were pruned in 2005 by an arborist. Dr Peter Nichols, an arborist retained by the respondents, examined the trees in June 2007 and found that they are in good health, pose no imminent hazard to persons or property and warrant retention. He recommends no action other than monitoring at five yearly periods. Dr Nichols’ opinion was the only expert evidence in the proceedings. We accept his recommendation and order accordingly.

The Chinese Elm

4 It was common ground that the roots of the Chinese Elm on No 27 had invaded the sewer line of No 25 in 2005. The roots retrieved from the sewer had been identified as those of a Chinese Elm. In most cases the Court expects that it is the responsibility of the owner of the sewer line to proof it against root invasion; however, in this case replacement of the old pipe would be extremely expensive since it is under a concrete floor. We note that Dr Nichols did not recommend removal of the Elm. However, it is likely that if the tree were retained, its roots would continue to invade the sewer on No 25. Given that Mr and Mrs Pearce are willing to remove the tree and pay for its removal, we think the best course of action is to order its removal and require the planting of screening shrubs with non-invasive roots in its place in order to compensate for the screening effect of the tree.

Compensation

5 The applicant claims compensation to the amount of $2,453. The amount is made up of six items, the largest of which is the cost of pruning the tree in 2005. We note that the applicant arranged for the pruning and did not give the respondents an opportunity to obtain their own quote. The expense was incurred two years ago. Given these circumstances, it would be inappropriate to require the respondents to pay the cost now. One item is an expense incurred with an arborist in 2005. For the same reasons as above, this cost should be borne by the applicant, who paid the bill two years ago. Two further items are fees paid to the council and the Court: such items are usually not reimbursed. Finally, two items are connected to removing the roots of the Chinese Elm from the applicant’s sewer pipe. These expenses occurred after the applicant had alerted the respondents to the problems caused by the Elm. It appears appropriate that these costs, which total $404, should be borne by the respondents.

Orders

1. The application is partly upheld.

2. An experienced arborist (AQF Level 5 equivalent or above) shall inspect the two Tallow-wood trees (Eucalyptus microcoriys) along the driveway at intervals of not more than five years and shall provide a written report on the condition and safety of the trees following each inspection. The owners of 27 Lower Almora Street shall bear the cost of the inspections and reports and shall provide to the owners of 25 Lower Almora Street a copy of the inspection report within fourteen days of the inspection.

3. The respondents shall pay the sum of four hundred and four dollars ($404) to the applicants within thirty days of the date of these orders.

By consent

4. The Chinese Elm (Ulmus parvifolia) along the driveway shall be removed, at the expense of the respondents, within thirty days of the date of these Orders.

_______________________ _______________________
Dr John Roseth Peter Thyer
Senior Commissioner Acting Commissioner

11/01/2008 - new keyword - Paragraph(s) cover sheet