Carlysle-Sainty v Barnes

APPLICANTS Mr C Bianchino, solicitor LEGAL REPRESENTATIVES: RESPONDENTS Mr S Campbell, solicitor Fishburn Watson O'Brien

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20164 of 2008 Ross and Eve Carlysle-Sainty v Gordon and Susan Barnes

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 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Carlysle-Sainty of 4 Pont Close, Emerald Beach concerning a tree located at 6 Pont Close, Emerald Beach, a property owned by Mr and Mrs Barnes.

2 The applicants were represented by their solicitor, Mr Carlo Bianchino, and the respondents by their solicitor, Mr Stephen Campbell of Fishburn Watson O'Brien. The applicants and the respondents were present at the on-site hearing.

3 The tree in question is a mature Eucalyptus resinifera (Red Mahogany) located in the respondents' front garden within 1 meter of the boundary fence that separates the two properties. Part of the canopy overhangs the applicants' garden and front porch.

4 The applicants are seeking the removal of the tree and its replacement with a more suitable species to be planted some distance away from the site of the tree in question. They are also seeking reimbursement for the cost of the application, for the arborist's report they submitted as part of the application and for the cost of professional cleaning of a deck. No amount for this compensation was submitted.

5 The applicants are seeking the removal of the tree as they contend that: 1. deadwood and other litter from the tree is affecting surfaces and paintwork making it difficult to paint or clean; 2. deadwood falling from the tree has damaged fittings and furniture and will continue to do so; 3. falling deadwood will pose a risk to a shade structure that they wish to install; 4. they wish to carry out Council approved landscaping, drainage and paving works within the root zone of the tree and these actions may increase the risk of failure; and 5. the tree is likely to fail in winds and cause significant damage to property and potentially serious injury to persons.

6 This last concern is based on three arborists' reports prepared on behalf of both the applicants and the respondents that discuss the presence of co-dominant stems and some included bark. Newspaper articles of storm events in the region were also produced to illustrate the applicants' concerns over the likely increase in storm events associated with climate change.

7 The tree was inspected from both properties and relevant points from the arborists' reports were discussed and assessed.

8 The on-site inspection of the tree showed it to be a mature tree with a form and habit consistent with a mature eucalypt. The amount and location of the deadwood and the amount of epicormic growth throughout the canopy are consistent with its state of maturity and its response to changes in its environment. The deadwood is mostly small in diameter and located at the ends of branches. There is some normal internal dead wood. The co-dominant stems arise within a metre of the ground. There is some included bark but this appears minor with adequate 'welding' occurring. The Resistograph reading provided by Nigel Smith Tree Services taken through the junction of the two stems does not indicate any obvious internal defect, especially any internal cracking.

9 In relation to the arborists' reports, it is worth making the following comments as the quality and substance of these reports was debated by both legal representatives. 1. Nigel Smith Tree Services prepared a report in March 2007 for the respondents for a previous application and re-assessed the tree in May 2008 for this application. He found no need to change his original findings. He notes a minor bark inclusion at the base of the two leaders. He was the only arborist to provide and internal assessment of the fork by carrying out a Resistograph test and included the original graphs in his report. The tree was drilled through the fork and through the more northern of the two leaders. The graphs showed no signs of significant internal defects. He concludes that the tree appeared sound and healthy and is retainable for the next 15-40 years with an acceptable degree of risk, assuming reasonable maintenance. He makes some recommendations for pruning and other maintenance. References from the literature, although not correctly cited, are including in his report. 2. Ross Leaver of Harbour Arbour assessed the tree for the respondents in May 2008. The findings of this report are somewhat contradictory. Mr Leaver found that the tree had good vigour, a normal amount of deadwood and sound branch unions but that the major problem was a bark inclusion at the base of the co-dominant stem. He states that, at this stage, however, there is no evidence of this union failing. He goes on to state that this is not a species that is prone to failure from included bark. He expressed concerns over its stability under easterly winds. He concludes that the included basal union poses a moderate risk to the neighbouring property but is unlikely to fail in the near future under normal conditions. He then goes on to talk about the risk posed under storm conditions and offers a range of management options from removal, to pruning to cabling. He does not make any specific recommendation. One reference to the published literature is included. 3. Andrew Izard of Northern Beaches Treecare Services was engaged by the applicants to assess the tree and to make comments on Nigel Smith's report. Mr Izard discusses likely changes to the soil and site, especially the possible compaction of the soil. He discusses work practices in the region and tree removals in the vicinity of the tree in question. He also discusses the possible impact of proposed works (by the applicants) within the root zone of the tree. He does not discuss the bark inclusion but concentrates on falling debris. He ultimately concludes that the tree should be removed. Mr Izard provides no substantiation of any of his assumptions either by providing evidence of testing or by the use of the published literature. 4. In conclusion, the quality of the reports was variable with all lacking elements of technical knowledge, adequate use of the published literature and logical conclusions and recommendations based on fact and validated assumptions. However, the inclusion of internal test results by Nigel Smith was appropriate and useful in this matter. 5. No arborist acknowledged the short summary of the Practice Directions for Expert Witnesses obligations for expert witnesses which are contained in Direction 14 of the Standard Tree Directions (and made in these proceedings). 10 Under s.12 of the Act, a number of matters must be considered. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents' property. (d) The tree is a locally occurring species and is likely to be a remnant of the original vegetation and is thus likely to make a contribution to the local ecosystem and to biodiversity. The respondents produced photographs of native fauna in and near the tree. (e) The tree makes a contribution to the scenic value of the land on which it is located. (f) As the tree is large and located at the front of the respondents' property close to the street and forms part of the remaining canopy of remnant vegetation it has some value to public amenity. (g) The tree is located on a slope and thus is likely to contribute to soil stability. (h)(i) This clause was raised by the applicants' solicitor, Mr Bianchino, with respect to Council approved works that the applicants wish to undertake. These works include drainage, paving and landscaping that will involve some excavation. The applicants are concerned that this will damage the root system of the tree and will exacerbate the likelihood of failure. Clause (h)(i) refers to: anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant… As the proposed actions have not yet occurred, in my opinion, the clause does not apply to the current situation.

11 Under s.10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property or is a likely 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.

12 I have assessed the tree and have inspected elements of the applicants' property and find that some minor damage to property has been caused by the failure of deadwood onto their property and that this is likely to continue. I am not satisfied that there is any significant risk of failure of part or all of the tree, apart from the falling of deadwood as already stated, onto the applicants' property in the near future.

13 Absent damage, there is no scope for awarding costs for leaves and twigs etc falling into the neighbouring property (see Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para 171). Further, in Barker v Kyriakides [2007] NSWLEC 292, the Court adopted a tree dispute principle that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. There are no circumstances why the Barker principle should not apply in this case. 14 Further, on the matter of costs and expenses, I do not have the delegation from the Chief Judge to deal with any costs application for legal representation. In addition, the applicants have not been successful in achieving the outcome they applied for and reimbursement of any expenses is inappropriate.

15 Having found that the tree has caused some damage to property (and is likely to continue to do so) but this damage is not substantial enough to require the removal of the tree, the application to remove the tree is refused.

16 However under s.9, the following orders are made: 1. All deadwood down to 30 mm in diameter is to be removed from the tree from the canopy that overhangs the applicants' property to a point 2 m inside the respondents' property; 2. The end of one live branch, shown in the attached photograph, is to be removed to the point indicated on the photograph; 3. This pruning is to be carried out by an arborist with a minimum AQF level 3 qualification in arboriculture; 4. The work in (1) and (2) must be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with the latest version of the WorkCover Code of Practice for the Amenity Tree Industry; 5. The arborist in (3) shall have all appropriate insurances. 6. The work in (1) and (2) is to be carried out within 60 days of the date of these orders; 7. The respondents are to organise and pay for the work in (1) and (2) including the removal of all material pruned from the tree. 8. The respondents are to give the applicants at least 2 weeks notice of the commencement of the works in (1) and (2); 9. The applicants are to give access to their property to the arborist and any assisting crew for the safe and practical execution of the works in (1) and (2) and for the removal of prunings; 10. Removal of deadwood down to 30 mm as specified in (1) is to occur every 12 months from the date of the first pruning until such time as the proposed works on the applicants' property approved Coffs Harbour City Council are commenced by the applicants at which time this order shall cease to have effect. 15 It is noted, but does not constitute a matter I need to deal with, that Coffs Harbour City Council permits neighbours to prune branches of trees that overhang their property.

      J Fakes
      Acting Commissioner of the Court

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