Sidebottom v Cairney

[2007] NSWLEC 356

Land and Environment Court

of New South Wales

CITATION:	Sidebottom v Cairney [2007] NSWLEC 356
PARTIES:	APPLICANT John Sidebottom RESPONDENT Lorraine Cairney
FILE NUMBER(S):	20265 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Root pruning
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	14 June 2007
EX TEMPORE JUDGMENT DATE:	14 June 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

14 June 2007

07/20265 John Sidebottom v Lorraine Cairney

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. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application has been made by Mr Sidebottom, a resident of 13 Teralba Road, West Wallsend concerning a mature Camphor Laurel (Cinnamomum camphora) (the tree).

3. The tree is located on the property to the east at 15 Teralba Parade. Ms Cairney is the owner of this property.

4. The tree is approximately 12 m high and is located on the boundary between the two properties at about the midpoint along the length of the common boundary. A fence is located in general vicinity of this boundary.

5. Mr Sidebottom has excavated around an extensive root network adjacent to the fence. At least a substantial portion of this comes from the tree.

6. There is no agreement between the parties as to whether the fence is or is not located on the boundary.

7. However, there is agreement between Mr Sidebottom and Ms Cairney that, if we were minded to order root pruning as part of the determination of the application, it would be appropriate to order such pruning to take place along the line of the fence. This would avoid requiring the cost of a survey of the boundary. In light of this agreement, there is no need for us to express any view on whether or not the fence is, in fact , located on the boundary.

8. We have also had the opportunity to inspect a concrete retaining wall some 600 mm high and located some 600 mm or so to the north of Mr Sidebottom’s house. This wall has a crack in it adjacent to one of the larger of the tree’s roots. There is a dispute between Mr Sidebottom and Ms Cairney as to whether this cracking has been caused by the roots from the tree.

9. We are satisfied, on the evidence that we have seen today, that it is more probable than not that the roots have caused or at least significantly exacerbated the cracking of this wall.

10. This root has been severed. Thus, it cannot exacerbate the damage it has caused to the wall.

11. Other roots in the vicinity are not likely in the near future to cause damage to the retaining wall. We are, therefore, satisfied that, pursuant to s 10(2)(a) of the Act, the tree has caused damage to Mr Sidebottom’s property but is not likely, in the near future to cause further damage to it.

12. The Court’s jurisdiction is enlivened by this finding but the fact that there is no likelihood of further damage in the immediate future enables us to have regard to that fact when setting timeframes for the works which we propose to order.

13. Evidence was given by Mr Sidebottom and Ms Cairney of what their respective arborists had advised them. These views, together with a copy of his arborist’s report provided by Mr Sidebottom, concluded that there are no significant structural instabilities in the tree and that root pruning at the present fence line would not cause any instability.

14. Although Mr Sidebottom’s arborist says that the tree has poor structure, he has not provided any details of what assumptions he has made in support of such an opinion. Mr Sidebottom’s arborist concluded that the tree has a safe useful life expectancy of between 5 and 15 years.

15. We therefore accept that failure is not likely in the near future and, as a consequence, the test under s 10(2)(a) of the Act, that the tree is likely to cause damage in the near future is not satisfied. We are therefore not prepared to order removal of the tree.

16. We note that Ms Cairney has had work undertaken, in the past, to roots located on Mr Sidebottom’s property. We also note that there is a conflict in the evidence between them as to the extent of the work that was undertaken and the reasons for any limitations which might or might not have existed to limit the scope of that work

17. We are satisfied, on the basis of what we have concluded concerning the tree, that we do not need to resolve this evidentiary conflict. However, these works by Ms Cairney are relevant to be considered when determining how long should be allowed to complete works ordered to be done and how such works should be paid for.

18. We have concluded that the following are the appropriate orders which are to be made by the Court:

• The roots are to be pruned at the existing fence line commencing from 2 m to the north of the northern edge of the more northern trunk of the tree and extending to the south to the rear building line of Mr Sidebottom's house;
• The root pruning is not required to be carried out by an arborist;
• The root pruning is to be done by Ms Cairney within 90 days of the date of the orders of the Court;
• A person authorised on Ms Cairney’s behalf may enter onto Mr Sidebottom’s land for the purposes of carrying out the order requiring the root pruning along the fence line – such access is to be on reasonable notice to Mr and Mrs Sidebottom and at a time when they are able to supervise the work being carried out;
• The parties are to install a root barrier along the section of the fence line where the root pruning has taken place. The root barrier shall be located on Ms Cairney’s side of the fence and shall extend 900 mm below the surface level on her side of the fence;
• Mr Sidebottom and Ms Cairney are to share the cost of the root barrier equally.
• To effect this, the work of installation of the root barrier is to be carried out by an arborist retained by Mr Sidebottom.
• The root barrier is to be installed by an AQF Level 3 arborist (the arborist) with appropriate insurances;
• The root barrier is to be of a reputable proprietary brand selected by the arborist;
• The arborist is to check for any deficiencies in the root severing along the line of the proposed barrier at the time of its installation. If the arborist finds deficiencies in the severing, the arborist is to rectify them at the time of installation of the root barrier;
• The root barrier is to be installed within one month of the root pruning taking place;
• The arborist may enter onto Ms Cairney’s land for the purposes of carrying out the order requiring the installation of the root barrier along the fence line – such access is to be on reasonable notice to Ms Cairney and at a time when she is able to supervise the work being carried out; and
• Mr Sidebottom shall get two quotations for the installation of the root barrier and provide them to Ms Cairney. Ms Cairney is to pay an amount equal to half the lower quotation to Mr Sidebottom within 60 days of a receipted invoice for completion of the work being provided to her.

19. With respect to the root mass which is located between the proposed root barrier and the concrete retaining wall, we are satisfied that it should be removed after the root pruning has been done and that the cost of such removal should be on the same basis as for the installation of the root barrier. The organization of that work shall also be on the same basis as for the installation of the root barrier.

20. This cost apportionment takes into consideration the contribution made in the past by Ms Cairney in undertaking mitigation works to the roots.

21. We have also considered the question of whether or not we should make any order with respect to the concrete retaining wall.

22. We are satisfied that, when the works that we have ordered to be carried out have been carried out, there will not be any further pressure on or likely damage to that retaining wall caused by the tree.

23. Whether or not there might be some other further damage to the retaining wall occasioned by subsurface water flow, as proposed by Ms Cairney, is a matter about which we do not need to draw a conclusion.

24. Mr Sidebottom provided two quotations with respect to the retaining wall. One, from VAS Concrete, suggests that repairs to the retaining wall are “needed as soon as possible”. The document provides no reasons for this. This person is a licensed concreting contractor not an engineer.

25. The second quotation is provided from G. Hadley Proprietary Limited, concreting contractor. No license number is quoted. This quotation does not suggest any urgency is required.

26. We are not satisfied, in light of the conclusions we have reached with respect to remediating the root issues, that there is any basis for requiring any work to be undertaken to the concrete wall.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court