Land and Environment Court of New South Wales CITATION : Grigoris v Catholic Education Department [2009] NSWLEC 1293 APPLICANT Emmanuel Grigoris PARTIES : RESPONDENT Catholic Education Department FILE NUMBER(S) : 20356 of 2009 CORAM: Fakes AC KEY ISSUES: TREES (NEIGHBOURS) :- Removal of a mature Eucalyptus tereticorns (Forest Red Gum) and pruning of overhanging branches of a Cupressus sempervirens (Italian Cypress) and a Callitris sp. (Native Cypress Pine), seeking compensation for damage to property. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 28 August 2009 EX TEMPORE JUDGMENT DATE : 28 August 2009 APPLICANT Mr E Grigoris (litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Catholic Education Department JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 28 August 2009 20356 of 2009 Emmanuel Grigoris v Catholic Education Department JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Emmanuel Grigoris the owner of a property at 99 Flagstaff Road Warrawong against the owner of trees growing on Lot 15 Flagstaff Road. That property is St Francis of Assisi Primary School which is owned and managed by the Catholic Education Office of the Diocese of Wollongong. Mr Paul Longobardi, the Principal of the school, and Mr Stephen Corbishley, Professional Officer from the Diocese of Wollongong, represented the respondent.. 2 The applicant is seeking the removal of a mature Eucalyptus tereticornis (Forest Red Gum), growing in the south west corner of the school, as he contends that the roots and the base of the tree have caused damage to a colourbond fence, the cracking of concrete formwork beneath the fence, and the cracking of a brick wall. He is also concerned about the impact of falling dead wood and ongoing root growth on a carpark proposed to be constructed at the rear of his property and adjacent to the tree. 3 He is also seeking the pruning of overhanging branches of a Cupressus sempervirens (Italian Cypress) and a Callitris sp. (Native Cypress Pine). He is concerned about leaf and or sap fall onto parked vehicles and a grease trap. 4 The applicant is also seeking compensation of an amount of $2,260.00 that being a quote for the repair of the damage, specifically: the replacement of two panels of metal fence, the removal and replacement of the concrete beneath those panels, and the removal and rebuilding of the brick wall. He is also seeking the costs of making this application. Dealing with the matter of the application fee, Commissioners do not have jurisdiction to award costs. 5 The respondent values the trees for the screening they provide to the school and the general amenity they afford to both students and staff. The area beneath the Eucalypt has seating and is used as a "time-out" area for the children. 6 The trees and their surroundings were inspected from both properties. Binoculars were used to assess the upper sections of the canopy. 7 The eucalypt is a mature specimen with no obvious structural defects apart from a potentially weakly attached branch arising from a previously lopped stub. This branch is growing towards the school in a north-easterly direction (away from the applicant's property). The canopy is healthy and contains between 5 and 10-% dead wood which is consistent with a tree of this age and in this type of growing environment. 8 The Cupressus sp. and Callitris sp. are in average to good health. The Callitris has co-dominant stems with included bark but this is unlikely to be a problem in the near future. 9 A colourbond fence was installed along the western boundary of the school in 2002. The southern-most panel has buckled as the tree has grown against it. 10 A root buttress on the western side of the tree has displaced and cracked the concrete block beneath the southern-most panel. This does not appear to be a true footing, rather a concrete infill. It appears as though concrete was poured between formwork resting on the ground. That is, the concrete is not load-bearing, rather a barrier/ gap filler. 11 The cracked and displaced concrete block appears to have caused cracking of a brick in a half-brick-wide return on the eastern side of a brick wall. This brick wall is a single skin panel between the corner of the colourbond fence, the metal palisade fence of the school and a metal post that supports large double metal gates. There is a metal cross bar that provides bracing for the gate post. The applicant suggested that this was cemented into the footing of the brick wall. The brick panel does not support the gates. 12 There is a crack in the mortar of the brick panel between the 4th and 5th course of bricks from the base of the wall. The applicant contends that this is caused by the roots of the tree. There was no excavation to show the presence or otherwise of roots. 13 The respondent's representatives agree that the tree has caused damage to the southern-most panel of the metal fence, the cracking of the concrete infill, and to the brick in closest proximity to that concrete block. Mr Corbishley disputes the crack in the mortar. 14 Under section 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 applicant's property or 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. These tests must be applied to all trees subject to this application. 15 Under section 12 of the Act, the Court must consider a number of other matters. The relevant clauses in this case are: (a) The trees are wholly or substantially located on the respondent's property. (d) The Forest Red Gum is a locally indigenous species that will make a contribution to the local ecosystem and biodiversity. (e) The trees make a contribution to the scenic value of the land on which they are growing and as such, are valued by the school. (f) The trees provide value to public amenity, particularly the eucalypt, as there are very few large trees in the vicinity. They can be seen by nearby residents and by anyone travelling west along Flagstaff Road, a locally important road. (h) The applicant brought the matter to the attention of the Principal in about April 2008. The respondent has agreed to engage an arborist to remove deadwood and to carry out on-going inspections of the trees. 16 Returning to section 10(2) with respect to the three trees. 17 The Callitris sp. has not caused, is not causing, and is unlikely, in the near future, to cause damage to property. In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, 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. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. Therefore, the application to prune this tree is refused. 18 With respect to the Cupressus sempervirens, none of the tests under s 10(2) are met, and therefore, the application to prune this tree is refused. 19 The Eucalyptus tereticornis has caused damage to the southern-most panel of the metal fence, it has cracked and displaced the concrete infill beneath this panel, and it has led to the cracking of a brick closest to that panel. There is no conclusive evidence that the crack in the mortar is due to the tree, and the crack is quite minor. There is dead wood and at least one hanging branch in the tree that could cause damage or injury to property or persons on both the respondent's and the applicant's property. Therefore section 10(2) is satisfied with respect to this tree and the Court can make an order. 20 The Orders of the Court are as follows: 1. The application to remove the tree is refused. 2. All dead wood down to 30 mm in diameter is to be removed from the tree, as are all hanging branches. 3. The weakly attached branch on the lopped stub growing towards the school on the north-eastern side of the tree is to be removed. If, in the opinion of the arborist carrying out this work, the other branches arising from this stub are also unsound or unstable, the entire branch is to be removed back to its collar with the trunk. 4. The work is to be carried out by an AQF level 3 arborist with appropriate insurance. The work is to be performed in accordance with AS4373 Pruning of Amenity Trees and with the NSW WorkCover Code of Practice for the Amenity Tree Industry . 5. The pruning is to be completed within 30 days of the date of these orders and is to be organised and paid for by the respondent. 6. The respondent is to organise and pay for the replacement of the southern-most panel of metal fence and a suitable infill. The fence and footings are to be constructed in a way that allows for the future growth of the tree. No damage is to be caused to any root greater than or equal to 50 mm in diameter. The corner of the brick wall is to be repaired. 7. The replacement of the fence, footing and repair of the wall is to be carried out within 120 days of the date of these orders. 8. The applicant is to provide all reasonable access for all works to be carried out in a safe and efficient manner. The applicant is to be given at least 3 working days notice of any works. ___________________ J Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.