What action is required to prevent further damage?
14If nothing else were to change it seems likely that the trees' roots will cause further damage to paving. The questions then arise: can roots be cut, and where?
15Reports by Mr George Oze of OZE Chipping Service Pty Ltd and Mr Peter Dubiez of Enviro Frontier Pty Ltd were tendered as evidence. I note that Mr Oze has only a Level 2 certificate. He calls the trees "North Island Pines". He says the trees have damaged foundations of the dwelling, but there is no evidence of this. He says roots have caused thousands of dollars' worth of damage, but there is no evidence of this. He says that foundations of the house will become seriously compromised due to the roots - again, there is no evidence of this. The report contains incorrect information and unsubstantiated conclusions. It is not reliable.
16Mr Dubiez's report of 14 June 2012 accurately identifies the trees and provides their dimensions. He says that severance of their roots at the edge of the paving, which is less than two metres from the trees, would compromise the trees' stability and I accept this. His report is not entirely accurate, however. For instance, I do not accept his claim that the trees will not grow taller. I find his calculations in his subsequent evidence of 3 August 2012 regarding Tree Protection Zones on page 3 are incorrect.
17I am of the view that roots have caused damage and are likely to cause further damage. Therefore, simple repair of paving is not enough - if only repair works were carried out, further damage would be likely. So the first question is: can a root barrier be installed at the edge of the paving? Based on the evidence and conclusions of Mr Dubiez, along with my own knowledge, I am of the view that cutting roots at the edge of the paving, within 1.5 m of the trees, would make them unsafe.
18The second question, then, is: is it reasonable to install a root barrier within the paved area, at least two metres from the trees, and for the paved area nearer the trees to be maintained regularly or replaced with a wooden deck? Mr Goldmann says that he does not wish to accept such a change to his property.
19To assist me to form a decision on whether this is a reasonable outcome I must first consider the matters in s 12 of the Act. My consideration of the relevant matters at s 12 is set out below.
S 12(a). The trees are entirely on Ms Malane's land close to the boundary. They are approximately 4.5 metres from Mr Goldmann's dwelling.
S 12(b). Interference with the trees would require consent from Council under the Environmental Planning and Assessment Act 1979.
S 12(b2). Pruning of roots less than 1.5 metres from the trees would impact the trees' stability. The nature of the local soil is sandy with shallow rocks, and there is some history of other trees failing in the area. This is not evidence that the three Norfolk Island Pines will fail, however these factors should be considered. Given the trees' proximity to a dwelling, it is important that the trees stability is not compromised. This must be considered when determining at what distance from the trees any root pruning could be done. There is clear evidence that large woody roots that are likely to be structural roots contributing to tree stability are present below Mr Goldmann's pavers two metres from the trees.
S 12(b3). The trees contribute to the landscaping of Ms Malane's property and provide some protection from wind.
S 12(c). No evidence was provided that the trees have any historical, cultural, social or scientific value.
S 12(d). The trees may contribute to the local ecosystem but they are not of a locally indigenous species.
S 12(e). The trees contribute to the natural landscape and scenic value of the land and the locality.
S 12(f). The trees can be seen from public land and have some value to public amenity.
S 12(g). The site is steeply sloping and the trees may contribute to soil stability.
S 12(h)(i). Ms Malane stated that the paving was not professionally laid, and I accept her evidence. Mr Goldmann does not have a right to a better quality of paving than the existing paving at Ms Malane's expense. The paving has aged since it was laid. Ms Malane should not have to pay the full cost of its repair.
S 12(h)(ii). Mr Goldmann notified Ms Malane of the damage in 2010, soon after he first noticed the damage. He alleges that the damage has worsened since 2010 and I accept that this is at least likely. It seems reasonable for Ms Malane to contribute around half of the cost of re-laying the paving.
20Balancing the above, I find that the value of the trees does not outweigh the right of Mr Goldmann to have his property remain undamaged without requiring anything more of him than reasonable maintenance. It would be unreasonable for Mr Goldmann to have only part of his paving protected by a root barrier, with the remainder requiring regular repair. It also seems unreasonable for Mr Goldmann to change his landscape from paving to a deck if that is not what he wants. On these grounds I am of the view that tree removal is required.
21As yet, it has not been established if all three trees have caused damage, only that at least one of them has. However I am satisfied that, considering their proximity to the paved area, all three trees are likely to cause damage to paving in the near future, and the Court has jurisdiction to make orders for all three. Furthermore, considering stability issues for all three trees - the soil type, the level of exposure to high winds, the growth of the trees together as a single group - removing any one tree or two trees would leave the remaining tree or trees at a higher risk, and an unacceptable risk, of whole tree failure in future. It follows that all three trees need to be removed. It would be prudent to leave their stumps in situ to prevent soil disturbance that might contribute to erosion.