Submissions
45Ms Gerathy for the respondents submits that the starting point is satisfaction of s 10(2). She cites Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, where at [62] His Honour states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act..". Ms Gerathy maintains that the Act considers likelihood and probability rather than simply possibility. She asserts there is no evidence of any property damage and over the seven years the applicants have lived on their property, only seven branches of any notable size have fallen onto their property. She also notes that recent pruning work was undertaken in 2014, after the most recent branch failure.
46In regards to the arborists' opinions, and placing little or no weight on both the Stanford and Izard assessments, Ms Gerathy contends I should prefer that of Mr Paroissien, to that of Mr Smith. However, she maintains that just because Mr Paroissien recommends further investigation of Tree 5 as well as removal of dead wood from the trees, that recommendation is not sufficient to meet the threshold test in s 10(2).
47However, Ms Gerathy considers that if the Court determines it has jurisdiction to make orders, the relevant discretionary matters in s 12, in particular shade, amenity, the provision of local habitat, landscape character and mapped prime koala habitat, should be given significant weight. She also cites the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 in that the trees were present when the applicants purchased their land, and if any orders are made for any intervention with the trees, then consideration should be given to who should pay for any work.
48The applicants contend that the jurisdictional tests in s 10(2) are met as a consequence of the branches that have fallen into their property, in particular the two occasions where falling branches nearly hit their child. They are especially concerned about the extent the trees move in the wind and the sounds of rubbing branches. Indeed they expressed how fearful they are of whole trees falling onto their property in strong winds.
49The applicants submit that I should prefer Mr Smith's opinion regarding the risks the trees pose because of their size, condition, the likely impacts of trenching, wind direction, slope, saturated soils, and the other changes in soil level. They press Mr Paroissien's findings in regards to the high hazard rating he gives the trees in Table 1 of his statement of evidence. The applicants also press Mr Stanford's comments in regards to the high percentage of dead wood and 'onset of disease' and his inability to state that the trees are safe.
50In support of their position the applicants cite a number of cases. They contend that in Yin v D'Hondt & anor [2014] NSWLEC 1040, while the Court found the tree had a high landscape value and was healthy, the risk of injury posed by the weak attachment of the trunks outweighed any reason for its retention. They maintain similar findings were made in Turner v Garlick [2014] NSWLEC 1159 in regards to damage and discretionary matters. They consider Mr Smith's opinion about the risk of whole tree failure should prevail over any discretionary matter.
51They press Bellette v Rubin & ors [2014] NSWLEC 1080 where the Court considered that the removal of dead wood at the top of the tree would leave a large wound, would not deal with the structural problems with the tree and would make the tree vulnerable to wind loading, and thus ordered removal. In this regard the applicants contend removal of dead wood still leaves the trees vulnerable to wind loading, particularly from the north/east as noted in Mr Paroissien's report. Pre-disposition to windthrow was also considered in McGuiness v King [2013] NSWLEC 1049.
52The applicants contend that trees 1-5 are growing in a tightly constrained area restricting their growth and health. Given the trees show evidence of past failure and are of poor health, they submit the trees should be removed. In support of this they cite Owners Corporation SP17514 v Owners Corporation SP34633 [2013] NSWLEC 1105 and the Court's finding that in regards to potential injury, it must consider risk in the foreseeable future based on characteristics of the species, its condition at the time of the hearing, evidence of past failures and the circumstances in which the tree is growing.
53The applicants maintain that once all of the dead, diseased and epicormic branches are removed there would be very little canopy left on any of the trees and the most practical outcome is the removal of the trees; in this regard they cite Price v Dougherty [2013] NSWLEC 1089 and Duncan & anor v Osland [2013] NSWLEC 1136. They contend that the removal of branches overhanging the respondents' dwelling has resulted in further unbalance of the canopy. In regards to unbalanced canopies and the risk of failure, the applicants cite Pastars v Chhabra [2013] NSWLEC 1237.
54With respect to the discretionary matters in s 12 of the Trees Act, the applicants contend that the respondents' claim that the trees provide them with privacy are unfounded as the canopies of the trees are well above their dwelling and that privacy is afforded by understorey trees and shrubs. They maintain that the trees have no historical, cultural, scientific or social value; make a minimal contribution to the natural landscape; while they can be seen from the street their contribution to public amenity is minimal; and they have little impact on soil stability and the water table. They press the findings of Mr Richards who found the removal of the trees would have minimal impact on the local ecosystem or biodiversity. In short, they contend that the risk the trees pose to their property and family outweighs any other consideration and the trees should be removed.