Forner v Walsh (N0 2) [2010] NSWLEC 1002

Land and Environment Court of New South Wales

CITATION : Forner v Walsh (N0 2) [2010] NSWLEC 1002

APPLICANT Catherine Forner PARTIES : RESPONDENTS Mark and Michelle Walsh

FILE NUMBER(S) : 20623 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :-

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Forner v Walsh [2009] NSWLEC 1360 CASES CITED: Hinde v Anderson and anor [2009] NSWLEC 1148 Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 4 January 2010

DATE OF JUDGMENT: 4 January 2010

EX TEMPORE JUDGMENT DATE : 4 January 2010

APPLICANT In person

LEGAL REPRESENTATIVES: RESPONDENT Mr D Manca (Solicitor) SOLICITOR LAS Lawyers and Consultants

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

4 January 2010

20623 of 2009 Catherine Forner v Mark and Michelle Walsh (No 2)

JUDGMENT 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 Mark and Michelle Walsh, the owners of trees growing at 232 Henry Lawson Drive. 2 At the initial on site hearing on 14 October 2009, the trees subject to this application were viewed and a judgement and orders given by me. Forner v Walsh [2009] NSWLEC 1360 should be referred to for details on each of the trees. This judgement relates to orders and directions given at that hearing and re-heard on site on 4th January 2010. 3 The applicant was concerned that four trees growing on the respondents' property posed a risk of damage to her property and a risk of injury to persons and sought the removal or pruning of the trees. Mrs Forner's concerns were largely based on the failure of a branch in April 2009 from one of the trees onto the Walsh's property after strong winds. 4 In the October judgement, orders were made for the respondents to engage and pay for an AQF level 3 arborist to remove dead wood down to a minimum diameter of 30 mm from three of the trees. 5 At the second on-site hearing on 4th January 2010 it was observed that some dead wood had been removed as ordered but some remained in the branches overhanging the applicant's property. It was stated at the hearing that the arborist engaged by the respondents was unable or reluctant to access the remaining dead wood. In my opinion, that dead wood should be accessible to a competent climber with the appropriate tools. 6 At the initial hearing there was insufficient detail on the risk of harm posed by structural defects observed in two of the trees (Trees 1 and 2). Subsequent directions were given for the respondents to engage an AQF level 5 arborist to undertake testing with a Resistograph. The directions detailed the scope of the investigations and the information required in the report. A copy of the report was to be filed with the Court and a copy given to the applicant. 7 These directions were followed, and a report was prepared on 18 December 2009 by Mr Laurie Dorfer of Urban Tree Management (UTM). The aerial inspection and Resistograph drilling was undertaken by Mr Ken Cantor of Glochidion Arboriculture and Horticulture Services on 15 December 2009 8 This report details the inspection and testing process, provides results and graphs of the drilling and draws reasoned conclusions and recommendations from the results. 9 The main areas of concern with Tree 1, a Eucalyptus tereticornis (Forest Red Gum) and the largest of the trees in question, were what appeared from the ground to be cavities in the main trunk and in some of the branches overhanging the applicant's property. 10 The aerial inspection and preliminary sounding with a mallet identified only two cavities that required drilling. The results of the drilling showed both cavities passed the theoretical limits for soundness. However, due to the extent of the opening of one of the cavities, its location on the branch and the garage beneath the branch, the recommendation was made that the branch containing this cavity be removed in its entirety. I concur with this recommendation. The report indicated that the other defects in the tree had a low risk of failure. 11 The main concerns with Tree 2, another Forest Red Gum, were two cavities in the main trunk. 12 Test results from the drilling of these cavities indicated that there is sufficient supporting wood remaining and the risk of failure is low. 13 Prior to the October hearing, but after the lodging of the application, Mrs Forner engaged Mr Michael Clark, an arborist, to inspect and report on the trees. That report was rejected at the October hearing by the respondents' solicitor as Mr Clark had omitted an acknowledgment 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. 14 Mr Clark's report has been re-filed with the Court and contains the required acknowledgement. Mr Clark was present at both hearings. 15 At the January on-site hearing, the applicant and Mr Clark drew my attention to a branch stub on Tree 1 that they contend was not inspected or tested by Mr Cantor or Mr Dorfer and which poses a risk of failure. Mrs Forner was adamant that this branch should be reduced in length to reduce any such risk. 16 In my reading of Mr Dorfer's report, I am satisfied that this particular defect was inspected and assessed to be of low risk. I am satisfied that no further testing of this tree needs to be undertaken and the reduction of that branch is not justified. However, should the circumstances change in the future, the applicant may make another application to the Court (Hinde v Anderson and anor [2009] NSWLEC 1148; Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258). Those changes in circumstances then need to be tested against the four jurisdictional questions posed by section 10(2) of the Trees Act.