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. 17 Under s 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. These tests must be applied to each tree. 18 With respect to Tree 2, the Resistograph tests show that the risk of failure of the cavities is low. There is however, some dead wood in the tree that may cause property damage should it fail. 19 With respect to tree 1, the testing finds that there is a potential risk of injury posed by a cavity in a large branch that overhangs the applicant's property. That branch is the lowest second order structural branch to the south at the lower crown. There is also some remaining dead wood. 20 Therefore as at least one of the tests under s 10(2) is satisfied for each tree, the Court's jurisdiction is enlivened and the Court can make an order. 21 The orders of the Court are: 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 and 2. This work must comply with AS4373: 2007 Pruning of Amenity Trees and with the WorkCover Code of Practice for the Amenity Tree Industry. The arborist must have public liability insurance of at least $5M and provide proof of currency of insurance cover. 2. The arborist is also to remove the branch in Tree 1 identified in paragraph 3.12 and photos 1 and 3 of the UTM report dated 18 December 2009. This branch is to be removed to its collar with its trunk in accordance with AS4373. [This is the only live branch to be removed from this tree.] 3. This work is to be completed within 60 days of the date of these orders. 4. The respondents are to give the applicant at least 5 working days notice of the date and timing of the works. Should weather or other circumstances interfere with the planned works, the applicant must be notified within 24 hours of any change in plans. 5. The applicant is to provide all reasonable access for these works to be carried out in a safe and efficient manner. __________________________ J Fakes 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.