Carlyle-Sainty v Barnes

[2007] NSWLEC 339

Land and Environment Court

of New South Wales

CITATION:	Carlyle-Sainty v Barnes [2007] NSWLEC 339 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANTS Ross & Eve Carlyle-Sainty RESPONDENTS Gordon & Susan Barnes
FILE NUMBER(S):	20159 of 2007
CORAM:	Moore C
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	7 June 2007
EX TEMPORE JUDGMENT DATE:	7 June 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr S Campbell, solicitor Fishburn Watson O'Brien

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

7 June 2007

07/20159 Ross & Eve Carlyle-Sainty v Gordon & Susan Barnes

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

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

2. Mr and Mrs Carlyle-Sainty of 4 Pont Close, Emerald Heights have lodged the application. The application seeks the removal of the tree.

3. The tree, subject of the application, is located on a neighbouring property, 6 4 Pont Close, owned by Mr and Mrs Barnes.

4. The tree is a Red Mahogany (Eucalyptus resinifera). It is some 25 m or so in height.

5. The tree is located some 200 or 300 millimetres from the boundary of the two properties. It is located on the up-hill side from Mr and Mrs Carlyle-Sainty’s home. The closest point of the Carlyle-Sainty’s house is some 20 m or so from the tree.

6. The application is based on two of the tests contained s 10(2) of the Act.

7. These are that:

• there is a risk of injury to persons by the tree (that being the test in s 10(2)(b) of the Act); and
• it is likely, in the near future, that the tree would cause damage to Mr and Mrs Carlyle-Sainty’s property (that being the third of the tests in s 10(2)(a) of the Act).

8. I have a statement of evidence provided by from Mr Nigel Smith, of Nigel Smith Tree Services Pty Limited on behalf of Mr and Mrs Barnes.

9. I have also had the benefit of a written statement by Mr G. Leonard, the Senior Biodiversity Officer employed by Coffs Harbour City Council (the Council).

10. The Council has not sought to intervene to support or oppose the application before the Court. However, Mr Leonard has appeared to provide oral evidence to the Court to assist understanding the present factual matrix of the tree.

11. The conclusions that are set out in Mr Leonard's written report, under the heading “Prognosis”, are:

The tree has ecological value, in that it provides habitat for Koalas, Squirrel Gliders and a range of other native fauna. The tree provides some habitat connection to remaining stands of native vegetation to the north and south of the Barnes property.

The tree also has landscape value.

The tree is unlikely to fail unless it is subjected to extreme storm conditions.

Immediate threats do, however, relate to some necrotic branches in the upper canopy.
These branches may fall, and are more likely to fall downslope, into the Carlysle-Sainty property.

The reaction wood in the junction between the two leaders will continue to grow, thereby increasing its potential to fail in later years. Removal of the northern leader would reduce the risk of eventual failure.

12. The area of Mr and Mrs Carlyle-Sainty’s property which is immediately adjacent to the tree and would form the primary target zone (on their property) should there be complete or partial failure of the tree is clearly not a significantly used area of private open space.

13. This is a relevant factor when considering the “risk of injury to persons” test.

14. Mr Smith has concluded that the tree has a SULE (safe useful life expectancy) rating being of a medium lifespan. He undertook resistograph tests of each leader and stated “Both readings showed sound wood present”.

15. Amongst Mr Smith's conclusions are recommendations that a number of maintenance steps be undertaken.

16. However, his report not make that any comment that it is necessary to remove any of the branches or either of the co-dominant leaders of the tree for any of the reasons arising under s 10(2) of the Act. Indeed, his only limb removal recommendation is made for reasons of aesthetics only.

17. I have carefully examined the extent of any included bark at the various major junctions of the tree within four metres or so of its base. The extent of the included bark, although some is present, is minor.

18. Similarly, I have examined the extent of the reaction wood growing at these junctions. There is no evidence of abnormality.

19. In light of what I have observed during this examination, I am satisfied that there is no indication that there is likely, at any time in the foreseeable future, to be complete failure of the tree or failure of the attachments of any of its major limbs. This conclusion is consistent with the statements of Mr Smith and Mr Leonard and with Mr Leonard’s oral evidence.

20. I am satisfied, as a consequence of these findings and that evidence, that, although Mr and Mrs Carlyle-Sainty have an obviously genuine and honestly held fear of failure of the tree, it is not likely to cause damage to their property in the near future – that being the relevant test in s 10(2)(a) of the Act against which the tree is to be assessed.

21. The test in s 10(2)(b) of the Act against which the tree is to be assessed is whether or not it poses any risk of injury to any person. In light of the findings and evidence concerning the present state of the tree, there is no significant risk of complete or partial failure. This, together with the lack of significant use of any relevant target area, means that this test is not satisfied.

22. There is nothing, therefore, when tested against the Act, which warrants the Court ordering any intervention with the tree.

23. The application is refused.

Commissioner of the Court

11/03/2008 - Correct date of hearing - Paragraph(s) Cover sheet