Land and Environment Court of New South Wales CITATION : Haines v McNally [2007] NSWLEC 202 APPLICANTS P & L Haines PARTIES : RESPONDENTS P & L McNally FILE NUMBER(S) : 20088 of 2007 CORAM: Moore C - Fakes AC KEY ISSUES: Trees (Neighbours) :- DATES OF HEARING: 11 April 2007 EX TEMPORE JUDGMENT DATE : 11 April 2007 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C FAKES AC 11 April 2007 07/20088 P & L Haines v P & L McNally 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 http://www.lawlink.nsw.gov.au/lec/ JUDGMENT 1 THE COMMISSIONERS: This is an application, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by Mr and Mrs Haines, the owners of the property at 35 Shamrock Parade, Killarney Heights. The application concerns a Himalayan Cedar (Cedrus deodara)(the cedar) located at 33 Shamrock Parade adjacent to the slightly downhill, southwestern boundary of 35 Shamrock Parade. The application is for the removal of the cedar. 2 We have inspected the cedar and inspected a section of its root system located on 35 Shamrock Parade. These roots have been exposed by Mr and Mrs Haines. We have each also had the opportunity of going underneath the house on 35 Shamrock Parade to look at a root from the cedar which has grown into the subfloor space of the house. 3 We have each separately noted, during the course of our subfloor inspections, that there is no displacement of the small concrete slab immediately inside the access point to the subfloor area nor is there any visible displacement of any of the supporting structures of the house. 4 In light of that and the fact that the garage which is the element of the 35 Shamrock Parade structures most proximate to the cedar has been constructed on a slab floor, we are satisfied that there is no imminent likelihood of damage to the structures on this property. 5 As a consequence of that, we are not prepared to order the removal of the cedar because of the risk of damage to the structure on 35 Shamrock Parade perceived by Mr and Mrs Haines. 6 In saying that, we are mindful of the fact that circumstances may change and, if there is, at some future time, evidence of structural damage or structural displacement occasioned by the roots of the cedar, a further application under the Act is not precluded by virtue of this decision. 7 The next matter which is raised by Mr and Mrs Haines is the damage that they say has been occasioned to their gutters on the cedar's side of their garage caused by interruption to the flow of water by the dropping of needles from the cedar into the gutters of their property. 8 Although there has been some extensive pruning of the cedar on its 35 Shamrock Parade side, we accept that there is a continuing likelihood of needle drop both into the grounds of 35 Shamrock Parade and into some of the guttering on that side of the house and garage at 35 Shamrock Parade. 9 However, as has been the adopted position in other matters that have been dealt with by the Court under the Act, there is a degree of normal "neighbourly housekeeping" required when living in a settled and relatively green urban environment. 10 In this instance, in addition, Mr and Mrs Haines obtained a pre-purchase inspection report by a building consultant, prior to purchasing the property. This report drew their attention to the risks associated with the drop of needles from the cedar. 11 We are not satisfied that the general proposition in (9) should be departed from in this instance. There is a need to accept that there will be a degree of the needle fall from cedars in an urban environment and the requirement to accept the consequent need for neighbourly housekeeping arrangements. 12 With respect to the more specific proposition that Mr and Mrs Haines were on notice of this needle drop yet they determined to proceed with the purchase of the property, this would also undermine any foundation (if it otherwise existed) either to make any remedial order against Mr and Mrs McNally, the present proprietors of 33 Shamrock Parade, or to found any basis for removal of the cedar. 13 We have also carefully inspected the exposed cedar roots for the purpose of considering the damage that has been occasioned to the paved path running alongside of the garage on 35 Shamrock Parade. 14 We are satisfied that a number of the roots should be pruned for general precautionary purposes and in order to reduce the risk of any adverse impact on the gas pipe serving the house at 35 Shamrock Parade. They are marked on the photograph annexed to this judgment. 15 We are satisfied that, if the gas pipe is to be replaced at some stage, as part of its normal life renewal, it would be appropriate for the gas pipe to be attached to the adjacent wall as part of the replacement process. That would provide some further preventative measure against any possible further interaction with the roots of the cedar. 16 We are satisfied that the cost of the root pruning should be met by the owners of 33 Shamrock Parade. 17 We are satisfied that we should specify the level of qualification of the arborist undertaking that pruning should be one with an AQF level 5 qualification in arboriculture. The orders will make it clear that it is inappropriate that there be any interference with any other roots or with the major root system adjacent to roots to be pruned. 18 With respect to the path, we are satisfied that it is both appropriate and desirable that the root impacted portion of the path be removed and re-laid so that a humped path rather than a stepped path is provided over that the area of the cedar's root zone. 19 As a consequence, the likelihood of tripping because of the trip hazard presently existing should be removed by the re-laying. 20 We propose to order that there be no interference with any of the roots of the cedar during that re-laying process. 21 We turn to consider the question of who should bear the cost of the re-laying. We are satisfied that, striking a balance between the parties, there should be an apportionment of costs – given that it is the cedar located on the McNally property that has occasioned the damage to the path but, however, balancing that there is the fact that Mr and Mrs Haines were on clear notice of the damage to the path at the time of their purchase. 22 We are, therefore, of the view that the orders should require that the reasonable cost of the lifting and re-laying of that portion of the path be a cost equally shared between the owners of 35 Shamrock Parade and the owners of 33 Shamrock Parade. 23 The final matter requiring our consideration is that Mr and Mrs Haines have evidenced a desire to install rain water tanks at the location shown in the photograph. They wish to harvest rainwater from the roof of the property for garden and permitted household uses. 24 Whilst this is undoubtedly a commendable aspiration, we are not satisfied that the major trunk root should be removed as a method of facilitating the installation of the tanks that are presently proposed. 25 We are not satisfied that there is no alternative acceptable location for different sized or configured tanks available which would not impact on light access to the existing dwelling or be ones which would not able be able to be functionally installed. 26 Under those circumstances, if Mr and Mrs Haines propose to continue with the installation of tanks at the presently proposed location, any additional costs that are required to accommodate the existence of the cedar's roots (by a tank stand, for example) should be a cost borne by them. Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.