Forner v Walsh

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152

APPLICANT Catherine Forner (litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Mr D Manca (solicitor) SOLICITOR LAS Layers and Consultants

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20623 of 2009 Catherine Forner v Mark & Michelle Walsh

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Catherine Forner of 234 Henry Lawson Drive Georges Hall against the owners of four trees growing at 232 Henry Lawson Drive. The owners of that property are Mark and Michelle Walsh. Mr Dion Manca of LAS Lawyers and Consultants represented the respondents at the on-site hearing. The respondents were present at the hearing.

2 The applicant is seeking the removal or pruning of four trees growing on the southern boundary of the respondents' property. Mrs Forner contends that the trees pose a risk of damage to her property and a risk of injury to persons.

3 The trees subject to this application are Tree 1 - a Eucalyptus tereticornis (Forest Red Gum) the most eastern of the four trees located approximately one metre to the west of a 'granny flat' on the respondents' property; Tree 2 another Forest Red Gum to the west of tree 1 and immediately to the west of a shade structure on the respondents' property; Tree 3 - an Angophora subvelutina (Broad-leafed Apple) growing immediately to the west of tree 2; and Tree 4 - an 8 m stump of a rough barked eucalypt located at the western end of the property near the river and abutting a deck.

4 In her application, Mrs Forner sought the removal of Tree 1 and the pruning of the remaining three trees. At the on-site hearing she requested that an additional two trees be considered. This was denied as no notice had been given to the respondents or to the Court. She also sought the removal of trees 1, 2 and 4 and the pruning of tree 3. This was allowed as section 9 of the Act enables the Court to make any orders it considers necessary to remedy, restrain or prevent damage to the property, or to prevent injury to any person, with respect to the trees that are subject to the application.

5 The applicant's concerns are based largely on the failure in April 2009 after strong winds of a large branch from Tree 1 onto the respondents' property. This resulted in damage to that property. The applicant had also sought the removal of a large dead tree (Tree 4). Undisputed evidence in her application stated that branches from that tree had fallen and caused damage to a retaining wall and other property.

6 The dead tree was removed to a height of about 8 metres above ground in August 2009. A dispute between the applicant and the respondents over the required insurance levels for the arborist prevented the tree from being completely removed.

7 In August 2009, the applicant obtained a tree inspection report from Mr Stephen McLoughlin. Mr McLoughlin visually inspected the trees from the ground and only from the applicant's property. This report will be referred to later in this judgement.

8 At the preliminary hearing of this matter, Senior Commissioner Moore gave both parties directions as to any additional material they may wish to rely on. Direction 14 relates to any expert giving written or oral evidence on behalf of a party. Any written expert evidence prepared after the date of the directions, in this case 21 September 2009, is to include acknowledgement of and agreement to be bound by Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules.

9 After this date, Mrs Forner engaged Michael Clark, an arborist, to provide an additional report on the four trees plus 2 additional trees; this report was dated 28 September and the trees were inspected on 26 October. As Direction 14 was not complied with, the respondent's solicitor was unwilling to accept this report and it was not allowed as evidence.

10 There are four trees subject to this application. Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is 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. That said, the tests must be applied to each tree.

11 Section 9 of the Act enables the Court to make any orders that it thinks fit to deal with the issues arises from the application. The extent of the orders depends on the seriousness of the damage or injury.

12 Tree 1 is approximately 1.1 metres in diameter and is about 1.5 metres from the applicant's garage. It was inspected from both properties and from the street. Binoculars were used to view the upper portions of the canopy and for a closer view of sections of the branches and stems. A significant portion of its canopy overhangs the garage. The canopy is healthy with less than 5% dead wood. The remaining stub of the failed branch indicates that failure may have been partly due to included bark.

13 The tree has codominant stems. Mr McLoughlin referred to some included bark between these stems as a possible point of failure but the on-site inspection showed only a minor inclusion resulting in me concluding that failure from this point is highly unlikely. There are several large branches that overhang the applicant's property. The lowest of these branches showed no obvious defects and the attachment appeared sound. However, when viewed from the street, there is evidence of some small cavities on the top of other branches higher in the canopy that overhang the applicant's property. There is also a defect at the base of a large branch that overhangs the respondent's property. In all other respects, the tree appeared sound.

14 Tree 2 has a large limb overhanging the roof of the applicant's house. The attachment of this limb appeared sound but there is some dead wood in this section that could fall and cause damage. The trunk of this tree has a vertical and narrow cavity about a metre above the overhanging branch. There is a small degree of reaction wood associated with this.

15 Tree 3 has some dead wood and an unusually configured branch that partially overhangs the applicant's property.

16 Tree 4 is the remaining stump of a eucalypt. It is approximately 8 high and contains a number of small hollows. It has the remains of a termite nest where the main trunk bifurcates about 4-5 m above ground. The nest indicates that the termites were probably a species of Nasutitermes, a group of arboreal termites not normally associated with damage to houses. The trunk abuts the western end of a deck on the respondents' property.

17 Apart from s 10(2), the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly located on the respondents' property. (d) The trees are endemic to the area and several contain hollows, which according to the respondent, house birds and possums. Therefore these trees make a contribution to the local ecosystem and to biodiversity. (e) The trees contribute to the natural landscape and scenic value of the land on which they are growing and are part of the landscape character of the area. (f) They have intrinsic value to public amenity as they are visible from the main road and a busy intersection as well as from the river that runs at the rear of the properties. (h&i) (ii) Any steps taken by the owner or the applicant to prevent injury or damage. In this matter, Mr Manca drew the Court's attention to the location of the applicant's house and garage. He suggested that given the size of the block, these could have been positioned elsewhere on the property to avoid damage or injury. In reply, the applicants stated that the current house and garage were built to replace previous structures on the same footprints. The applicants have owned their property for ten years. The applicant has sought advice from arborists. The respondents have undertaken pruning works on some of their trees.

18 Returning to section 10(2) with respect to each tree. There is evidence that a branch from tree 1 did fail and cause damage to property and therefore s.10(2) is satisfied and the Court's jurisdiction enlivened and the Court can make an order. There are a number of structural defects in this tree that have the potential to lead to branch failure. At this stage there is insufficient information on which to make a judgement on the risk of harm from these potential defects and further directions have been given. These directions are given at the end of this judgement. However there is also dead wood in the tree that, should it fall, could lead to damage or injury.

19 The dead wood in tree 2 represents the greatest risk of damage to property and one of the tests under section 10(2) is satisfied, however the cavity is an obvious potential defect and the further directions will relate to this tree as well as Tree 1.

20 Despite the unusual form of the branch on tree 3, the Angophora, the main risk of damage to property is the dead wood in the tree and thus section 10(2) is satisfied and the Court's jurisdiction enlivened and the Court may make an order.

21 Tree 4 has been removed to a point where failure onto the applicant's property is unlikely. The respondents' deck is between the tree and the applicant's property and the tree abuts the deck. The applicant raised concerns about termites in this tree. Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paragraph 189 states: …the specification of the tree as being the cause of damage to property or injury to any persons excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. That is, in this matter, the termites are incidental and the Act does not apply to organisms other than trees. As none of the tests under section 10(2) are satisfied, the Orders of the Court with respect to Tree 4 are that the application to remove or prune the tree is dismissed.

22 The interim orders of the Court are as follows: 1. The respondents are to engage and pay for an arborist (minimum AQF level 3 in Arboriculture) to remove all dead wood down to a diameter of 30 mm from Trees 1, 2 and 3. This work must comply with AS4373: 2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry. This work is to be carried out within 60 days of the date of these orders and may be undertaken concurrently with the works detailed in the additional directions. 2. The application to remove or prune Tree 4 is dismissed.

23 To deal with the insufficient detail on the risk of harm posed by the observed potential structural defects in Trees 1 and 2, I have made the following directions. 1. The respondents are to engage and pay for an AQF level 5 arborist to undertake testing with a Resistograph to report on the likelihood or not of failure of any cavities in the sections of the tree that overhang the applicant's property. The arborist is to inspect the attachment of the lowest branch of the tree that overhangs the respondents' property and report on its soundness. 2. Based on the inspection and testing, the arborist is to prepare a report for the Court. Apart from the usual requirements for a technical report, the arborist's report is to include the following information: - Acknowledgement and agreement to be bound by the Division 2 of Pt 31 of the uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 - The report is to comply with section 31.27 Expert Reports of the Uniform Civil Procedure Rules 2005. - For each site to be tested with the Resistograph, the following specific information is to be included in the report: a photograph of any cavity, its location in the canopy, diameter, directions and location of drilling, a map of any internal defects, calculations of strength loss citing the method/s used, and photocopies of the charts. 3. This testing is to be carried out within 60 days of the date of these orders. 4. The report is to be filed and served with a copy to go to the applicant, a copy to the Council and the copy to the Court is to be marked to the attention of Commissioner Fakes. 5. The matter is set down for a second on-site hearing at 9.30 am on Monday 4th January 2010.

      J Fakes
      Commissioner of the Court

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