Forner v Walsh
[2010] NSWLEC 1033
•18 February 2010
Land and Environment Court
of New South Wales
CITATION: Forner v Walsh [2010] NSWLEC 1033 PARTIES: APPLICANT
RESPONDENTS
Catherine Forner
Mark and Michelle WalshFILE NUMBER(S): 20938 of 2009 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Injury to personsLEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 18/02/10
DATE OF JUDGMENT:
18 February 2010EX TEMPORE JUDGMENT DATE: 18 February 2010 LEGAL REPRESENTATIVES: APPLICANT
Catherine Forner (litigant in person)RESPONDENT
Dion Manca (solicitor)
LAS Lawyers & Consultants
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes C
18 February 2010
20938 of 2009 Forner v Walsh
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.JUDGMENT
1 COMMISSIONER
: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Forner of 234 Henry Lawson Drive Georges Hall against the owners of two trees growing at 232 Henry Lawson Drive. The owners of that property are Mr and Mrs Walsh. Mr Manca of LAS Lawyers and Consultants represented the respondents.
2 The applicant is seeking the removal of 1 tree and the pruning of the other as she contends that the trees pose a risk of potential damage to property and are a risk of injury to people.
3 The trees are two Eucalyptus tereticornis (Forest Red Gum). Tree 1 is the more easterly of the two trees and its base is about 5m from the rear dividing fence between the two properties.
4 The tree has had one co-dominant stem removed. The respondents undertook this in 2009 with permission from Bankstown Council. The remaining stem is of a smaller diameter than the one that was removed. It is this stem that the applicant is concerned will fall onto her property. If it should fail she contends that it will cause major damage to her house and potentially cause injury.
5 The basis of Mrs Forner’s concern is partly a report submitted by Michael Clark, an AQF level 3 arborist engaged by Mrs Forner to inspect and report on the respondents’ trees. A photograph in Mr Clark’s report of 28 September 2009 shows the top of the removed section of tree 1. The caption under the photograph states “C.O.D.I.T failure due to brachet [sic] fungus along with included bark (poor attachment.(Tree No 1). Incorrect collar cut.”
6 Mr Clark was not in attendance at the on-site hearing so there was no opportunity for him to explain his assumptions. The photograph does not clearly show a fruiting body of a decay fungus but it does show pockets of decay which are bounded by both barrier and reaction zones produced by the tree. It would appear that the decay is well compartmentalised. There is no indication of any fruiting body or other signs of decay on the remaining stem.
7 At the on-site hearing I used a ladder to get within about 0.5m from the union in question. I did this from two sides of the tree. The included bark referred to in Mr Clark’s report is minor and there are no signs of any abnormal loading. No fruiting body was obvious. The final cut was slightly above where it might have been made but apparently made at a point where the remaining stem would not have been damaged by over-cutting. There is no branch collar at the base of a co-dominant stem and the position of the final cut in these situations depends on a number of factors.
8 An inspection of the canopy of tree 1 showed less than 5% dead wood and no obvious structural defects. There is very little canopy that directly overhangs the applicant’s property.
9 Tree 2 is another Eucalyptus tereticornis. The base of the trunk is about 2m from the dividing fence. The applicant is seeking the removal of the lowest of the major branches that overhang her property and the removal of all dead wood.
10 This tree has about 10% dead wood, the majority of which overhangs the respondents’ property. Mr Clark states in his report that “the tree is phototrophic due to shadowing of surrounding trees. It has a low hazard rating…”.
11 I inspected this tree from the ground using binoculars to focus on branch attachments. The attachment of the branch overhanging Mrs Forner’s house is normal and there is no indication of it being a weak attachment. The form of the tree is completely normal as is the angle and extent of the branch in question. There is nothing abnormal or unusual in the phototrophic response of this tree.
12 Mrs Forner requested further testing of the trees with a ‘Resistograph’ as was directed in a previous application made by Mrs Forner against other trees growing on the respondents’ property.
13 The inspection at the on-site hearing did not reveal any cavities, fruiting bodies or superfluous growth, that is, signs that would indicate the need for further diagnostic testing.
14 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property or are a risk of injury to persons. In, Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. These tests must be applied to each tree subject to this application.
15 The Court must also consider a number of matters under s12 of the Act. The relevant clauses in this case are;
- (a) The trees are wholly located on the respondents’ property
(d) The trees are remnants of the original plant community and thus contribute to the local ecosystem and to biodiversity. In the ‘methodology’ section of Mr Clark’s report he states that ‘habitat monitoring was carried out at certain times over three days but the results of his findings are not recorded in his report.
(e) The trees contribute to the scenic value of the land on which they are growing and to the locality.
(f) The trees are visible from Henry Lawson Drive, a busy road, and from the Georges River. They are part of the tree canopy that contributes to the landscape character of the area and thus the trees have value to public amenity.
(j) Other matters. Mrs Forner contends that Bankstown City Council gave permission to Mr and Mrs Walsh to remove “secondary branches” on tree 1 and to “remove the low limb overhanging the neighbours’ dwelling” from tree 2. In this respect, there was no indication in the letter from the council dated 24 June 2009 as to which secondary branch was to be removed from tree 1. Mrs Forner contends that it should have been the one closest to her property. Whilst permission may have been granted by council for works, there is no obligation on the tree owner to carry them out. The matter is now before the Court and must be determined on the facts and the tests imposed by s 10(2). There is no obligation on the Court to agree to the approvals given by any local council.
16 Returning to s10(2) with respect to tree 1, there is nothing in the tree’s structure to indicate that it poses a risk of damage to property in the near future. The applicant’s own evidence, given on site, is that no damage has been caused to her property from either tree. Nor is there any indication that this tree poses an unacceptable risk of injury to any persons, including anyone on the respondents’ property. Therefore, as none of the tests under s 10(2) are met, the Court cannot make an order to interfere with tree 1.
17 With respect to tree 2, the live branches over the applicant’s house are well attached and there are no signs that would indicate that they pose an unacceptable risk of damage to property or injury to persons. However, the dead wood in the tree could cause damage or injury. As two of the tests under s 10(2) are met, the jurisdiction is enlivened and the Court may make an order with respect to tree 2.
18 Therefore the Orders of the Court are:
1. The application to remove tree 1 is dismissed.
2. The application to remove the live, lowest branch over the applicant’s property is dismissed.
3. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30mm in diameter from tree 2. The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. The applicant is to provide all reasonable access, if required, for the work to proceed in a safe and efficient manner.
5. The respondents are to give the applicant at least two days notice of the works.
6. The works are to be completed within 30 days of the date of these orders.
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