Land and Environment Court of New South Wales CITATION : Storey & anor v Button [2007] NSWLEC 743 APPLICANTS Frank & Norma Storey PARTIES : RESPONDENT Alan Button INTERVENOR Gosford City Council FILE NUMBER(S) : 20415 of 2007 CORAM: Moore C - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 24 October 2007 EX TEMPORE JUDGMENT DATE : 24 October 2007 APPLICANTS In person RESPONDENT LEGAL REPRESENTATIVES: In person INTERVENOR Mr M Everingham, solicitor Gosford City Council JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 24 October 2007 07/20415 Frank & Norma Storey v Alan Button 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 http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2 The application is made by Mr and Ms Storey of 4A Cogra Road, Woy Woy concerning a Liquidambar tree (Liquidambar styraciflua) (the tree) located on the adjacent property to the east. This property is 69 Moana Street. Mr Button owns this property. The tree is mature one, some 20 or so m in height with a branch spread of some 15 m. 3 We have evidence from the Storeys and from Mr Button of a range of works that were undertaken in 2003 to address roots from the tree which had crossed Mr Button's boundary onto the Storeys' property. There is no complaint concerning the canopy of the tree. 4 The Storeys are concerned that the tree (which caused damage to their properly necessitating the replacement of their patio several years ago) is a risk of future damage to their properly. 5 The Storeys are an elderly couple and are unable, they tell us, to undertake substantial maintenance tasks in their own garden – including the removal of any substantial roots that might be likely to damage their property in the future. 6 We are satisfied, on the basis of their evidence and that of Mr Button, that the first test under s 10(2)(a) of the Act has been met – in that, in the past, the tree has damaged the Storeys' property. 7 We are satisfied that it is likely that there are presently some roots from the tree in the Storeys' property. We are further satisfied that they removed a root from the northern side of their property (this root has been preserved for us to inspect). We are satisfied, on the balance of probabilities, that this root came from the tree – there being no other trees of similar substance in the immediate vicinity. 8 We also note that we have taken account of a number of actions that have been performed, in the past, by the applicants and the respondent. 9 First, we note that, in 2003, when the replacement of the patio was undertaken, the Storeys did not seek (and have not sought now through this application) compensation for the cost of such replacement. Mr Button, on the other hand, undertook trenching and root barrier construction coupled with root removal on his side of the boundary and also undertook a root removal exercise on the applicants' side of the boundary. 10 On the basis of the trenching and root barrier works described by Mr Button, we are satisfied that they are likely to have had a considerable but not guaranteed utility in preventing the spread of major roots along the length for which a barrier has been installed but not beyond the length of that barrier. 11 We are further satisfied that there is a basis to order (founding our jurisdiction on the past damage to the Storeys' property) some further preventative measures. 12 First, we are satisfied, on the basis of the present obvious health of the tree, that the root pruning which was undertaken in 2003 has not had a significant adverse impact on or caused injury to the tree. We are therefore satisfied that it would be appropriate to require Mr Button to undertake further root pruning works to sever any roots presently on the Storey'sa property. However, we are certainly not prepared to order the tree's removal. 13 Given the likely efficacy of any future root pruning to mirror the effectiveness of the root removal undertaken by Mr Button in the past, we propose to order an extension of the root pruning. We propose to order Mr Button to dig a trench to a depth of 900 mm on his property – from a point 2 m to the east of the south-western corner of Mr Button's property returning to the fence along the Storeys' property and then returning a further 2 m to the east along the northern boundary of Mr Button's property. 14 This trenching is to be undertaken at a distance of not more then 400 mm out from any of the three existing fence elements on these frontages. 15 We have considered how long we should allow Mr Button to undertake this work. During the course of the proceedings, we have had a deal of informal discussion with Mr Button and the Storeys about what might be a reasonable timeframe within which any work might be undertaken, We are satisfied that it would be appropriate, under all the circumstances, to give Mr Button nine months to undertake this work 16 Mr Button has are made submissions to us concerning his financial circumstances and these are one of the factors that we have taken into account in setting what would be a rather longer period than would ordinarily be ordered by the Court within which the work is to be undertaken . 17 Having indicated that Mr Button should undertake the work, we have also taken into account the fact that, in lieu of electing to undertake the work himself by hand, he might hire equipment or engage a contractor to do the work. If Mr Button were to do this, we consider that it would be appropriate to require the Storeys to make a modest contribution, limited to $150, towards the cost of the hiring of the equipment or the engaging of a contractor to carry out the work which we will order. If Mr Button engages a contractor or hires equipment for the purposes of carrying out the work, the applicants will be ordered to contribute $150 towards the cost of such hiring or contractor within 28 days of the presentation to them of a receipted account after the completion of the works. Tim Moore Peter Thyer 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.