Land and Environment Court of New South Wales CITATION : Grogan & McLean v Stacey [2007] NSWLEC 757 APPLICANT Annie Grogan & Peter McLean PARTIES : RESPONDENT Kevin and Eda Stacey FILE NUMBER(S) : 20862 of 2007 CORAM: Fakes AC KEY ISSUES: Trees (Neighbours) :- tree be removed, the tree could fail and cause injury, the tree overhangs, the tree has caused damage to the driveway and to a split sandstone retaining wall LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 14/11/2007 EX TEMPORE JUDGMENT DATE : 14 November 2007 APPLICANT Mr M. Staunton, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr Kevin and Mrs Eda Stacey, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 14 November 2007 20862 of 2007 Annie Grogan & Peter McLean v Kevin and Eda Stacey JUDGMENT 1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Ms Annie Grogan and Mr Peter McLean of 2133 Pittwater Road Church Point concerning a tree located on a property at 2129 Pittwater Road Church Point. The applicants were represented by their barrister Michael Staunton. Also in attendance were Ms Melanie Howden, arborist for the applicants and Mr Peter Lebas, agent for the applicants and a town planner. 2 The tree in question is a Liquidambar styraciflua (Liquidambar). The property on which the tree is located is owned by Mr and Mrs Stacey. 3 The application seeks orders from the Court that the tree be removed as it is the applicants' contention that the tree could fail and cause injury to persons who use the driveway that the tree overhangs. The applicants also submit that the tree has caused damage to the driveway and to a split sandstone retaining wall. 4 The driveway in the general vicinity of the tree has recently been replaced. Photographs submitted by the applicants show cracking and disturbance to the surface of the driveway near the tree however sections of the driveway that have not been replaced show some cracking and displacement. The applicants' property is estimated to be about 35 years old. It is likely that the driveway and the retaining wall are of a similar age. 5 The applicants are not seeking compensation for either the driveway or the retaining wall but wish the damage to be acknowledged. It was noted that there were cracks in the mortar between the vertically aligned split sandstone that is the retaining wall in the vicinity of the tree. However cracks were also noted in the wall further down the driveway in sections with other plants including ferns. It is likely that the tree has caused some of this cracking and displacement but the age and construction method are such that this would be expected. No orders will be made regarding the retaining wall for the reasons outlined above and because the damage does not pose any significant risk. Similarly, no further discussion of the driveway is required. 6 Coming to the tree. The tree is a large, mature and healthy Liquidambar that may be up to 50 years old, the approximate age of the property on which it is located. The tree has a bifurcated trunk, the bifurcation occurs within about 1 metre of the base. There is included bark between the union of the stems with what appears to be bacterial wetwood. There are also discrete patches of wetwood around the base of the tree. 7 The stem that overhangs the applicants' driveway has been substantially pruned to a point where less than 20% of the canopy now overhangs the applicants' property. Some epicormic growth has developed on several branches that remain over the driveway. There appears to have been some pruning done in the past that has slightly altered the branching pattern. There is a dead section in the upper part of this canopy. The other stem that overhangs the respondents' property has not been substantially pruned. 8 The owners of the tree do not want the tree to be removed as, according to Mrs Stacey, the presence of the tree was one of the main reasons they bought the property 35 years ago. They value the tree for the shade it provides, the wildlife it attracts and for its own intrinsic values. 9 Both parties have had reports by suitably qualified and experienced consulting arborists. Both arborists agree that the tree is healthy and visually significant. Both agree that there is included bark at the bifurcation. The applicants' arborist considers that the tree should be removed as failure from this defect is not uncommon in mature Liquidambars. The respondents' arborist states that the tree can remain however, makes recommendations for ongoing works and inspections. The respondents' arborist tested the tree with a sonic tomograph and found no evidence of a bark inclusion at the test site. 10 I have inspected the tree from both properties and I am in agreement with both of the arborists in that this is a healthy tree that is visually significant and provides shade and amenity to the owners' property. 11 Under s 12 of the Act, I am obliged to consider a number of matters. I am satisfied that the tree is situated wholly on the respondents' land. It has been drawn to my attention by Mr Staunton that the Liquidambar is not protected by the Pittwater Shire Council Tree Preservation Order and therefore permission is not required for any works on the tree. The tree does not appear to have any special historical, cultural, social or scientific value. According to Mrs Stacey, the tree is used by Ring-tailed Possums and other fauna and thus makes a contribution to local biodiversity. The tree does make a contribution to the scenic value of the land on which it is situated and has some value for public amenity as it is of a significant size and some prominence. 12 Under s 12(h) I am satisfied that the applicants have taken steps to minimise the risk of branches falling onto the driveway by having a large number of overhanging branches removed. These works were carried out with the permission of the tree owners. 13 Mr Staunton advised that s12(j) should include an acknowledgement that, should the tree fail, it could cause injury to anyone using a driveway down-slope of the applicants' property. This particular driveway provides access to 5 properties. 14 Under s 10 of the Act the Court must be satisfied that the tree poses a risk to persons. I acknowledge the fact that there is included bark at the union of the two stems however at this stage, I do not consider that the tree should be removed. I propose to make the following orders. 15 The tree is to be inspected every year. Both the applicants and the respondents are to retain their own consulting arborists who have reported on this tree (or to engage any other AQF level 5 arborist) to jointly inspect the tree. The tree is to be retested with the sonic tomograph. At the same time, a Resistograph test is to be undertaken to determine if there is any internal cracking or any spread of decayed or altered wood. The first inspection is to be undertaken within 90 days of the publication of these orders. The initial inspection is to provide base readings for the subsequent annual inspections. Subsequent Resistograph® readings are to be at the discretion of the arborists. 16 At the time of the initial inspection, an AQF level 3 arborist is to be engaged to remove any dead wood that overhangs the applicants property and within 3 metres of the boundary between the two properties. All dead wood down to 30 mm in diameter is to be removed in accordance with AS4373:2007 Pruning of Amenity Trees. Any other works are to be agreed by the consulting arborists and then carried out by the AQF level 3 arborist. 17 In the subsequent annual inspections, if in the opinion of the arborists the condition of the tree has altered significantly and there is a high risk of failure, then the tree should be removed. 18 The costs of the inspections and works are to be borne by the tree owners. A brief joint report is to be prepared by both consulting arborists with both the applicants and respondents given copies. ___________________ J Fakes Acting Commissioner of the Court ljr 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.