Land and Environment Court New South Wales Medium Neutral Citation: Butcher & anor v Seeman & anor [2014] NSWLEC 1200 Hearing dates: 15 September 2014 Decision date: 26 September 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove the trees is dismissed; orders made for pruning one tree - see [86] Catchwords: TREES [NEIGHBOURS]; Damage to property; risk of injury Legislation Cited: Trees (Disputes Between neighbours) Act 2006 Conveyancing Act 1919 State Environmental Planning Policy No 44 - Koala Habitat Protection Cases Cited: Bellette v Rubin & ors [2014] NSWLEC 1080 Black v Johnson (No 2) [2007] NSWLEC 513 Duncan & anor v Osland [2013] NSWLEC 1136 Hinde v Anderson & anor [2009] NSWLEC 1148 McGuiness v King [2013] NSWLEC 1049 Owners Corporation SP17514 v Owners Corporation SP34633 [2013] NSWLEC 1105 Pastars v Chhabra [2013] NSWLEC 1237 Price v Dougherty [2013] NSWLEC 1089 Robson v Leischke [2008] NSWLEC 152; LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Turner v Garlick [2014] NSWLEC 1159 Yang v Scerri [2007] NSWLEC 592 Yin v D'Hondt & anor [2014] NSWLEC 1040 Category: Principal judgment Parties: N & V Butcher (Applicants) K & C Seeman (Respondents) Representation: Applicants: N & V Butcher (Litigants in person) Respondents: Ms K Gerathy (Solicitor) HWL Ebsworth Lawyers File Number(s): 201317 of 2014 Judgment 1The applicants are seeking orders for the removal of five trees growing on an adjoining property in Sawtell. They are concerned that any or all of the trees may fail onto their property or that branches falling from any of the trees may cause injury to someone, in particular their children. 2The applicants have applied under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). 3The respondents do not wish to remove the trees as they value them for the shade and amenity they provide as well as for their biodiversity values. 4In applications under Part 2 of the Trees Act, the key jurisdictional tests are found in s 10 - Matters of which Court must be satisfied before making an order, which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 5While the applicants remain dissatisfied with the respondents' actions, I am satisfied that the affidavits tendered by both parties demonstrate that a reasonable effort to reach agreement with the respondents has been made, and therefore s 10(1) is met. Preston CJ has considered the general requirements of this section in Robson v Leischke [2008] NSWLEC 152; LGERA 280 at paragraphs [191] to [196]. 6The application was originally made against six trees, however a survey of the respondents' property indicates that Tree 6, a large Eucalyptus robusta (Swamp Mahogany) growing near the southern corner of the respondents' property, is not substantially on the respondents' property and thus the Court has no jurisdiction to consider it. The applicants were granted leave to amend their application to delete this tree. The evidence 7The remaining five trees are likely to be remnants of the original vegetation. They are growing on an embankment at the rear of the respondents' property. The applicants' property is to the west of and generally down slope from the respondents' property. 8From north to south the trees are: * Tree 1 - Eucalyptus resinifera (Red Mahogany) * Tree 2 - Eucalyptus robusta (Swamp Mahogany) * Tree 3 - Eucalyptus robusta (Swamp Mahogany) * Tree 4 - Eucalyptus robusta (Swamp Mahogany) * Tree 5 - Eucalyptus robusta (Swamp Mahogany) 9The understorey beneath the trees comprises a mixture of native and exotic species. Steps have been cut into the embankment near the south-eastern boundary of the respondents' property, close to the base of Tree 5. 10There are three Melaleuca quinquenervia (Broad-leaved Paperbark) trees growing between the Eucalypts and the common boundary, close to the dividing fence. These trees are not in contention. At the time of the hearing it was apparent that the area between the lower edge of the embankment and the common boundary fence had been cleared of vegetation apart from the trees. 11The common boundary runs along what was likely originally a drainage line. According to the first respondent, when the respondents purchased their land in 2000, the land to the west was a farm. A farm dam was located to the south of what is now the applicants' property. The dam was subsequently filled. The applicants purchased their lot in 2003 and moved into their new dwelling in 2007. The applicants' lot was cleared of vegetation to enable construction of the dwelling and pool. 12Because of localised flooding in high rainfall events, in or about 2008, the first respondent installed a100 mm diameter agricultural drainage line along the base of the dividing fence. The common boundary slopes down hill from north to south. He maintains that part of the installation required trenching up to 300mm in depth through the soil and roots from a dead stump located near the central part of the boundary fence. The excavation was concentrated in the central section of the rear boundary. The northern end of the pipe is visible above ground level. The first respondent stated on site that, given the natural fall of the land, the southern end was installed at grade and then covered with soil and gravel. 13According to the first respondent, he also installed a number of 50mm diameter lateral pipes in a 'fishbone' arrangement, running diagonally across the area between the bottom of the embankment and connecting to the line along the fence. He maintains that these laterals were installed in shallow trenches no more than 100-150mm deep and that no woody roots were encountered. 14The first respondent pointed out the general location of a natural spring in the vicinity of trees 3 and 4 near the base of the embankment. The soil was observed to be quite moist. General comments were made about the species mix and their natural distribution in moist areas. 15The area between the edge of the embankment and the dividing fence has, over time, been gradually filled and levelled. According to the first respondent, gravel rather than clay has been used; natural build up of soil and organic matter has also contributed to the level change. 16In about July 2012, the first respondent replaced some of the 50mm lateral pipes with new ones, using the original trenches. He states in his affidavit (Exhibit 2) at [19] that no damage was done to tree roots. 17In late 2013, the respondents' property agents sought quotes for tree works on the respondents' property. According to the first respondent's affidavit (Exhibit 2), in January 2014 Mr Scott Stanford, a local tree worker was engaged to carry out pruning work including cutting back of branches overhanging the applicants' property, including any that may be a safety issue if they fell into the applicants' property, and a tidy up of the respondents' back yard after storms in mid-November 2013. The agent also requested that Mr Stanford provide a 'Health Assessment' of the trees. An email in the affidavit confirms the work included the removal of three Melaleuca quinquenervia (Broad-leafed Paperbark). It also appears from other evidence that the applicants paid Mr Stanford to remove part of a large overhanging stem/branch from Tree 6. 18During the inspection of the trees from the respondents' property, the applicants pointed out evidence of recent pruning of branches overhanging the respondents' dwelling, apparently a Rural Fire Service requirement. It also appears that a dead eucalypt was removed from the area near the Paperbarks. 19The applicants' main concern is that branches from the trees could cause injury to anyone on their property; they are particularly concerned about the safety of their children. Over the past seven years, the applicants contend that seven branches in excess of 2m in length have fallen onto their property with other instances of smaller branches falling into their yard, particularly during storms. They allege the branches have come from the five trees the subject of this application. The applicants maintain that on two occasions -in late 2008 and in late 2013, a branch fell from one or other of the respondents' trees narrowly missed their youngest son. They also contend that branches from the respondents' trees have damaged play equipment, have fallen onto the roof of their house, and have fallen onto the clothesline. 20In addition, the applicants are concerned that any or all of the trees could completely fail onto their property. They contend that the height of the trees, their location on an embankment, the drainage works undertaken by the first respondent and strong winds from the east/southeast are all factors that could predispose the trees to whole tree failure. 21Apart from the drainage works, the applicants are also concerned that the use of herbicides for weed control on the respondents' property could also have an effect on the health and stability of the trees. 22Both parties engaged arborists to report on the trees. 23As discussed in [17], the respondents' agents requested a 'Tree health assessment' from Mr Stanford, the tree worker who undertook pruning work on the respondents' property in January 2014. Mr Stanford's undated 'Health Assessment of Trees in the rear yard of 10 Kentia Court Sawtell' relevantly states in part (as summarised/ direct quote): * All the overhanging and dead limbs from the three remaining Paperbarks have been removed; what remains appears to be healthy and safe and poses only a minor threat to property or injury if the trees were to fail. * Removal of all overhanging branches and the main trunk of the large Swamp Mahogany [Tree 6] have been removed making the tree safer and reducing likelihood of damage/ injury by an estimated 75-80%; however what remains gives it an overall appearance of being diseased with a lot of dead wood remaining in the canopy; * Large eucalypts within rear yard - removal of overhanging limbs and majority of dead wood within canopies, threat to property and life greatly reduced. However, it is evident that the trees have a high percentage of dead wood and what appears to be the onset of disease. I cannot in good conscience state that the Trees are safe, as in the circumstances that one or more of them were to fail they are most definitely Large & Tall enough to cause considerable damage to Life & or Property. * I cannot in a basic assessment such as this, make the recommendation that these trees should be removed, however I can most definitely state that the only way to completely eliminate any threat or risk posed by the Trees is to completely remove them. 24Mr Stanford lists a number of factors that may contribute to the failure of trees and recommends a detailed arboricultural assessment be sought. Mr Stanford did not attend the hearing or prepare any expert report or statement of evidence. 25In January 2014, the applicants engaged Mr Andrew Izard to inspect and report on the trees. Mr Izard inspected the trees from the applicants' property. He cites a number of events as fact where it would not be possible for him to have that knowledge unless his clients had informed him. His comments appear to relate to photographs included in his report; the trees are not specifically numbered and his comments also include several of the Paperbarks. In point #3 of his report he refers to storm damage to, and branch failure from, the Paperbarks. His report dated 19.1.14 concludes in part [as written]: Future extreme climatic events pose a high possibility of partial of total tree failure, with an increasing Risk potential for significant property damage or possible Loss of life to occupants of the adjoining residences, this potential is present and ongoing with no diminishing of Risk within the next 12 months or foreseeable future. In my professional opinion of over 20 years working in the tree industry these trees should be removed as soon as practicable to eliminate the existing high Risk to property and occupants of all the residences that occur within the vicinity of these trees, this includes occupants of the residential property on which the trees occur.... 26On 24 March 2014 Mr Izard reinspected the trees and prepared another report, which updated the previous report. The notable updates refer to work done to the Paperbarks since the previous inspection. This involved removal of lower branches. Mr Izard notes that some overhanging branches remain. He also refers to communication with his client in regards to interference with the sewer system and the "invasive" nature of the roots of this species. It would appear from the revised report that comment #3 refers to Tree 6. He also includes a photograph, possibly supplied by his clients showing the dead branch that fell into the applicants' property in late 2013. 27Based on his assessment of the trees, ongoing exposure to high winds, previous storm damage and branch failure, limited growing area and disturbance to the root zone, Mr Izard maintains the recommendation in his first report. It would appear that his recommendation for removal includes the paperbarks. 28Mr Izard did not attend the hearing. 29The applicants subsequently engaged Mr Kayne Smith, an arborist, to prepare an expert report for the purpose of the hearing. Mr Smith attended the on-site hearing and gave oral evidence. 30Mr Smith assessed the trees from the respondents' property on 6 August 2014 and he prepared a 'Tree Risk Assessment' of the five trees in question (Exhibit F). Mr Smith finds all trees to be mature, between 26 and 28m tall, in fair health and with fair vigour. He observes all trees to have high to moderate levels of dieback, moderate to high percentages of epicormic growth throughout their canopies, and varying amounts of dead wood. 31Mr Smith states he probed the ground to determine the location and depth of the trenching undertaken by the first respondent. He states in his report for Tree 1: An excavated trench was located 2.5m from the base of the tree which there may well be more within the SRZ [(calculated) Structural Root Zone] but without further excavation this cannot be determined. For Tree 2 he notes a trench 0.9 m from its base, Tree 3 - 1.5m, Tree 4 - 1.5m, and Tree 5 - 0.9m - all with the same qualifying statement as Tree 1. For all trees he makes the following statements: Any disturbance within the SRZ can greatly increase the risk of complete failure." "With signs of root damage and a low LCR [Live Crown Ratio = ratio of crown to trunk] and high bending moment and stress on root system, it is a concern for windthrow and future tree failure." 32Mr Smith's report contains a photograph of each tree and a completed International Society of Arboriculture (ISA) Basic Tree Risk Assessment Form for each tree. Likelihood of failure is ranked from Improbable, Possible, Probable, to Imminent. Overall tree risk rating is ranked from Low, Moderate, High, to Extreme. On those forms, he makes the same findings for all trees, relevantly: * Crown and branches - likelihood of failure = Probable * Roots and root collar - Likelihood of failure = Possible * Overall tree risk rating = Moderate * Mitigation options: Remove tree = no residual risk; or Prune dead, dying and defective branches, (and) further investigate root damage = low residual risk if no root damage found. 33In the last three paragraphs in section 1.2 of his report, Mr Smith states: Shallow soil on the slope and saturated soil on the flatter area both contribute to a heightened risk of complete tree failure due to windthrow. Trenching within the SRZ of all of the trees may have caused damage to their structural roots and weakened their stability. The risk of failure in these conditions are regarded as high and warning signs of things to look for while completing tree risk assessments [sic]. Considering the overall poor health of the trees along with the high wind forces experienced, probable root damage, and high lever arm affects [sic], the structural integrity of each tree cannot be guaranteed against failure of branches or complete tree failure. It is reasonable to assume that the trees may fail in part or completely within the foreseeable future. Due to unpredictable but regular storm events creating high destructive winds, a time frame cannot be accurately given to when failures may occur but even in normal weather conditions it is likely that there will be failure with the foreseeable future. 34Notwithstanding the notations on the individual risk assessment forms, Mr Smith makes the following recommendations: With regards to the risk of injury and damage to infrastructure in the foreseeable future it is recommended that all five trees be removed to a stump 300mm above soil level. By completing the removal of the trees the risk of injury [to] people will therefore be eliminated. 35In oral evidence and under questioning from the Court, the parties and their representatives, Mr Smith was unable to give a time frame for "the foreseeable future". Under cross-examination he agreed that complete tree failure was unlikely within the next 12 months and that the risk of damage or injury arising from dead wood falling onto the applicants' property could be managed by removing the dead wood. However, at the completion of the evidence, Mr Smith maintained his opinion that the trees should be removed to eliminate all risk associated with them. 36The respondents engaged Mr Guy Paroissien, an arborist, to inspect the trees and prepare a report. Mr Paroissien was present at the hearing and gave oral evidence. He finds all trees to be mature specimens ranging from 23-30m in height, with moderate to high landscape significance. From Table 1 in his report, he notes the greatest failure potential for all trees is the risk of falling dead wood. 37In regards to stability Mr Paroissien notes that trees 1, 2 and 3 appear stable despite comments regarding excavation within the tree protection zone (TPZ); he make no comment about Tree 4; for Tree 5 he notes signs of instability and possible past failure to the north-east (being 'Butt Sweep') and evidence of past damage to roots on north-west side. 38He makes the following specific observations of each tree: * Tree 1: - fair branch attachment, codominant stems - while a weak point, not considered a risk of failure in the short term; moderate health, fair vigour, moderate levels of dieback and epicormic growth; 15-40 year Safe Useful Life Expectancy (SULE), high retention value. * Tree 2: - past suppression of canopy, good health, fair vigour, moderate levels of dieback, moderate to high levels of epicormic growth, sound branch attachment, no visual evidence of significant past branch failure, 15-40 year SULE, moderate retention value. * Tree 3: - fair branch attachment, some evidence of poor attachment but not considered a risk of failure in the short term, suppressed canopy, some evidence of past failure of small diameter branches, fair to poor vigour, high levels of dieback and epicormic growth, 5-15 year SULE, low retention value. * Tree 4: - past suppression of canopy, fair branch attachment, evidence of past failure of small diameter branches, fair vigour, moderate to high levels of dieback and epicormic growth, 5-15 year SULE, low retention value. * Tree 5:- past suppression of canopy, sound branch attachment, no evidence of significant past branch failure, poor vigour, high levels of dieback and epicormic growth, 5-15 year SULE, low retention value. 39Using a laser measuring device, Mr Paroissien measured the distance of the trees from the dividing fence as follows: Tree 1- 6.65m, Tree 2 - 5.45m, Tree 3 - 7.89m, Tree 4 - 9.24m and Tree 5 - 7.37m. At its closest, the applicants' dwelling is 5m from the dividing fence. 40Mr Paroissien's report included wind roses and data from the Bureau of Meteorology for Coffs Harbour, this being the closest station. The records show that: * At 9.00 am the prevailing winds are from the southwest with the most common wind speeds being between 10-20 and 20-30 km/hour. * At 3.00pm the prevailing winds are from the northeast with the most common wind speeds being between 20-30 and 30-40 km/hour and the south with common wind speeds between 10-20 and 20-30km/hour. 41In Mr Paroissien's opinion, the assessed risk does not support the removal of the trees however he recommends further investigation of any possible root disturbance near Tree 5. He also states that the trees have dead wood in their crowns and the removal of dead and diseased branches would assist in minimising the risk of predictable branch failure. 42In oral evidence, Mr Paroissien opined that the suppressed canopies of several of the trees were due to them once being part of a more extensive forest. He agreed with Mr Smith's overall ranking of a moderate risk level. Despite being thoroughly questioned by the applicants in regards to his hazard rating system, Mr Paroissien did not change his opinion or his recommendations. In regards to hypothetical questions as to the possible impacts of deeper trenching on tree stability, Mr Paroissien did state that if the extent of trenching was found to be much greater than advised by the respondents, he might alter his opinion as to the stability of the trees. Ecological report 43Apart from reports from arborists, the applicants also obtained an 'Ecological Assessment of Remnant Trees located at 10 Kentia Court, Sawtell' from Mr Peter Richards, an ecologist. This followed advice from Coffs Harbour City Council (CHCC) that the trees were mapped as being within Prime Koala Habitat and therefore captured by CHCC Koala Plan of Management [prepared pursuant to Part 3: State Environmental Planning Policy No 44 - Koala Habitat Protection]. 44Little weight can be given to Mr Richard's report. Apart from misidentifying the species of Tree 1, whether Mr Richards is of the opinion that the site no longer represents Primary Koala Habitat or not, the fact remains that the site is mapped as such and will remain so until the maps are revised. Koalas have used the trees in the past. Submissions 45Ms Gerathy for the respondents submits that the starting point is satisfaction of s 10(2). She cites Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, where at [62] His Honour states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act..". Ms Gerathy maintains that the Act considers likelihood and probability rather than simply possibility. She asserts there is no evidence of any property damage and over the seven years the applicants have lived on their property, only seven branches of any notable size have fallen onto their property. She also notes that recent pruning work was undertaken in 2014, after the most recent branch failure. 46In regards to the arborists' opinions, and placing little or no weight on both the Stanford and Izard assessments, Ms Gerathy contends I should prefer that of Mr Paroissien, to that of Mr Smith. However, she maintains that just because Mr Paroissien recommends further investigation of Tree 5 as well as removal of dead wood from the trees, that recommendation is not sufficient to meet the threshold test in s 10(2). 47However, Ms Gerathy considers that if the Court determines it has jurisdiction to make orders, the relevant discretionary matters in s 12, in particular shade, amenity, the provision of local habitat, landscape character and mapped prime koala habitat, should be given significant weight. She also cites the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 in that the trees were present when the applicants purchased their land, and if any orders are made for any intervention with the trees, then consideration should be given to who should pay for any work. 48The applicants contend that the jurisdictional tests in s 10(2) are met as a consequence of the branches that have fallen into their property, in particular the two occasions where falling branches nearly hit their child. They are especially concerned about the extent the trees move in the wind and the sounds of rubbing branches. Indeed they expressed how fearful they are of whole trees falling onto their property in strong winds. 49The applicants submit that I should prefer Mr Smith's opinion regarding the risks the trees pose because of their size, condition, the likely impacts of trenching, wind direction, slope, saturated soils, and the other changes in soil level. They press Mr Paroissien's findings in regards to the high hazard rating he gives the trees in Table 1 of his statement of evidence. The applicants also press Mr Stanford's comments in regards to the high percentage of dead wood and 'onset of disease' and his inability to state that the trees are safe. 50In support of their position the applicants cite a number of cases. They contend that in Yin v D'Hondt & anor [2014] NSWLEC 1040, while the Court found the tree had a high landscape value and was healthy, the risk of injury posed by the weak attachment of the trunks outweighed any reason for its retention. They maintain similar findings were made in Turner v Garlick [2014] NSWLEC 1159 in regards to damage and discretionary matters. They consider Mr Smith's opinion about the risk of whole tree failure should prevail over any discretionary matter. 51They press Bellette v Rubin & ors [2014] NSWLEC 1080 where the Court considered that the removal of dead wood at the top of the tree would leave a large wound, would not deal with the structural problems with the tree and would make the tree vulnerable to wind loading, and thus ordered removal. In this regard the applicants contend removal of dead wood still leaves the trees vulnerable to wind loading, particularly from the north/east as noted in Mr Paroissien's report. Pre-disposition to windthrow was also considered in McGuiness v King [2013] NSWLEC 1049. 52The applicants contend that trees 1-5 are growing in a tightly constrained area restricting their growth and health. Given the trees show evidence of past failure and are of poor health, they submit the trees should be removed. In support of this they cite Owners Corporation SP17514 v Owners Corporation SP34633 [2013] NSWLEC 1105 and the Court's finding that in regards to potential injury, it must consider risk in the foreseeable future based on characteristics of the species, its condition at the time of the hearing, evidence of past failures and the circumstances in which the tree is growing. 53The applicants maintain that once all of the dead, diseased and epicormic branches are removed there would be very little canopy left on any of the trees and the most practical outcome is the removal of the trees; in this regard they cite Price v Dougherty [2013] NSWLEC 1089 and Duncan & anor v Osland [2013] NSWLEC 1136. They contend that the removal of branches overhanging the respondents' dwelling has resulted in further unbalance of the canopy. In regards to unbalanced canopies and the risk of failure, the applicants cite Pastars v Chhabra [2013] NSWLEC 1237. 54With respect to the discretionary matters in s 12 of the Trees Act, the applicants contend that the respondents' claim that the trees provide them with privacy are unfounded as the canopies of the trees are well above their dwelling and that privacy is afforded by understorey trees and shrubs. They maintain that the trees have no historical, cultural, scientific or social value; make a minimal contribution to the natural landscape; while they can be seen from the street their contribution to public amenity is minimal; and they have little impact on soil stability and the water table. They press the findings of Mr Richards who found the removal of the trees would have minimal impact on the local ecosystem or biodiversity. In short, they contend that the risk the trees pose to their property and family outweighs any other consideration and the trees should be removed. Consideration and findings 55The jurisdictional tests in s 10(2) must be applied to each tree the subject of the application. The applicants' key concerns are in regards to future damage or likely injury arising from falling branches or whole tree failure. 56In Robson v Leischke at [200] Preston CJ states (citations omitted): 200 The requirement that the Court be satisfied that the tree has causes or is causing damage to the applicant's property, accords with the requirement at common law that actual damage is required to complete an action in nuisance. The requirement that, if damage has not yet occurred, the Court must be satisfied that "it is likely to occur in the near future" also accords with the requirement that a quia timet injunction [An injunction to prevent or restrain an apprehended or threatened wrong and which would result in substantial damage if committed - Butterworths Australian Legal Dictionary] should not issue unless the impending damage (which is required to be substantial or almost irreparable) is imminent or is likely to occur in the near future or, put another way, there is "a real, appreciable probability" of irreparable damage.. 57In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. This is a period I consider appropriate in the circumstances. 58In regards to injury, the Court considers the risk posed by a tree in the 'foreseeable future' based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. While no time frame has been identified in any judgment, the qualifying statement is intended to require consideration of the supportable facts in the particular circumstances of the matter. The use of the term 'forseeable' should not imply an open-ended time frame, to do so would drift into the speculative realm of "hypothetical possibility" as considered by Craig J in Smith & Hannaford (see [44] of this judgment). While an applicant may hold a genuine fear that something may happen, the Court must apply an evidence-based approach to determine if that fear is reasonably likley to be realised. 59Each tree is considered in turn. In considering the physical and the expert evidence I have used the specialist arboricultural knowledge I bring to the Court. While I have included them for completeness, I propose to give little if any weight to the Stanford and Izard reports. Neither arborist was present at the hearing and, with the exception of references to the Paperbarks and Tree 6, the documents do not specifically identify the trees the subject of this application. The deficiencies in Mr Izard's report are indicated in paragraphs [25] - [26]. At best, Mr Stanford's assessment provides an indication of the pruning work he undertook. 60The applicants cite a number of cases they consider support their application for removal of the five trees in question. For completeness I have addressed each of those cases in the light of the application before me. I was the presiding Commissioner in all except two of the eight cases cited. The purpose of the following points is to make it clear that every application made to the Court under the Trees Act is unique. While the Act requires the sequential consideration of certain matters, it is the particular circumstances and facts of each case that provide the basis for the Court's determination of jurisdiction and any orders that may arise from that determination. * In Yin v D'Hondt the tree was indeed a healthy specimen, however, the respondents' own arborist, who happened to be Mr Paroissien, identified a serious structural defect at the base of the three stems arising from the base of the tree that could not be managed without severe reduction pruning which in turn would produce other structural problems (at [59]). The respondents were supportive of its removal at their own expense. I agreed with the prognosis, s 10(2) was satisfied, and orders were made for its removal at the respondents' expense. As discussed below, no similar defects exist in any of the trees the subject of this application. * In Belllett v Rubin the tree in question had both a serious structural defect (a significant bark inclusion) as well as a large dead and partially detached top of a leader close to the applicant's property (at [8]). For the reasons in [9] and [14] of that judgment, the decision was made to remove the tree. As with Yin, the nature of the defect and the particular circumstances were entirely different to the matter before me. * In Turner v Garlick the Commissioner ordered the removal of two small fig trees on the basis of damage caused by their roots to an adjoining structure. As required by s 12 of the Trees Act, the Commissioner undertook the required consideration of discretionary matters, which on balance saw the retention of a larger fig tree. The Commissioner also applied the Tree Dispute Principle in Black v Johnson (No 2) and apportioned equal sharing of the costs between the parties. Again, the trees and circumstances are unlike anything in this matter. * In Owners Corporation the roots/ trunk of the trees ordered for removal had caused actual damage to the applicant's property and orders for root pruning to enable repair of the driveway/ prevent future damage would have compromised the trees' stability. While the applicants were also concerned about injury arising from branch failure, the evidence did not support the concerns. Therefore, as before, the circumstances in Owners Corporation have nothing in common with this matter. * In McInnes v King the Court relied on the evidence before it and the expertise of the respondent, a forester, who acknowledged that 20 years ago he over-planted his property. The respondent also had interim approval from the local council to remove the trees subject to a replacement plan. The trees before me in this matter are mature remnants of the original vegetation that have adapted their form to their spatial arrangement over a long time. * In Pastars v Chhabra the parties and the Commissioner agreed the trees had damaged the applicant's property and thus the Court had jurisdiction to make orders. In the absence of any arborists' reports, the Commissioner relied on his own expertise and the evidence provided by the parties. The Commissioner identifies failures of branches at least 400mm in diameter and stem decay. In the particular circumstances of the case (trees extending over the Pacific Highway) and given the particular habit of the trees and their defects, the Commissioner concluded that the trees also posed a risk of injury that necessitated removal of one of the trees and the pruning of the other. The judgment describes a situation very unlike the circumstances of the matter before me. * In Price v Dougherty, the tree was in the process of being removed and is described in [7] as being a 14m tall stump with a few epicormic shoots sprouting from it. The circumstances are not comparable in any way. * The tree in Duncan v Osland is described in [5] and [6] as being over-mature/ senescent with most of the upper canopy being dead. The only common element is that the tree was probably a remnant of the original vegetation. All of the trees in question are described as mature and while there is certainly some dead wood within them, the majority of the branches are alive. In Duncan, the tree had passed the point of pruning. Tree 1 61The applicants contend that the large dead branch that fell into their property and landed near their pool in late December 2013 (shown in Exhibit G) came from either Tree 1 or Tree 2. They maintain that given its size, it could have caused damage or injury had it struck something or someone. 62Given the proximity of Tree 1 to the area where the branch fell, and the relative condition of Tree 1 to Tree 2 (as discussed by the arborists), the absence of other canopy between the tree and the applicants' property (when compared to Tree 2), I am satisfied on the balance of probability that the branch is likely to have come from Tree 1. However, no damage or injury was caused. In the period between the branch failure and the hearing, work has been carried out on this and the other trees. The question remains as to whether this tree meets any element of s 10(2). 63The arborists (Mr Smith and Mr Paroissien) agree that Tree 1 is showing signs of stress including dieing back from the tips leaving terminal dead wood (described as 'dieback') and the production of small epicormic shoots along the main branches. The production of these shoots is a normal survival mechanism in the eucalypts. While Mr Smith attributes the main cause of these symptoms to root zone disturbance, in particular trenching, it was discussed on site that there could be many other reasons for the common signs of stress visible in the canopy. 64Mr Paroissien comments on the potentially weak attachment of co-dominant stems however, he agreed on site that no included bark was visible and the risk of failure was not imminent. I support this observation. Mr Smith agreed with Ms Gerathy that removing dead wood in the tree would reduce the most likely cause of damage or injury; indeed, he notes this in his ISA assessment sheet. Mr Paroissien also recommends removal of dead wood and diseased wood as a means of reducing the risk associated with the predictable failure of dead wood. 65In regards to whole tree failure and the impact of trenching, despite Mr Smith accepting that there are no current signs of soil cracking, lifting or compression - all signs of likely instability, he maintains his opinion that the tree could fail and the risk can only be eliminated by removing it. In my opinion, Mr Smith's recommendation to remove this tree (and the other trees) does not accord with the 'possible' likelihood of failure of the roots and root collar, and the 'moderate' rating he assigns to the 'Overall tree risk rating' in his ISA risk assessment form. In my view, his recommendation for removal is very disproportionate to his assessed risk (for further discussion on the trenching see [80]. In regards to the possibility of wind throw, the wind roses in Mr Paroissien's report show the prevailing winds swing from the southwest in the morning to the northeast in the afternoon. Trees adapt to the prevailing conditions. Contrary to the applicants' contentions that the trees are growing in a constrained environment, I my opinion there are no significant impediments to root growth. I note the respondents' dwelling is elevated above the ground on poles and therefore excavation for its construction is likely to have been limited. 66Returning to s 10(2), I am satisfied by the opinion of the arborists and from my own observations that given the amount and size of dead wood remaining in the tree and for the other reasons in [62], the predictable failure of this dead wood could in the near future, cause damage to the applicants' property and could cause injury to any person. Mr Paroissien also pointed out an unusual wound near the base of a large branch on the western side of the tree that may render that branch potentially unstable. While storm events occur from time to time, no evidence has been adduced that would convince me to support Mr Smith's position of tree removal on the basis of likely whole tree failure. 67However, as part of s 10(2) is satisfied, the Court's jurisdiction under s 9 of the Trees Act, to make any orders it thinks fit with respect to this tree is engaged. This requires consideration of the relevant discretionary matters in s 12 of the Trees Act. 68The following matters are relevant: * The tree is located on the respondents' land about 6.5m from the common boundary. Very little of the canopy overhangs the applicants' property. * Apart from a restriction on user created under s 88B of the Conveyancing Act 1919 preventing removal of any tree except where reasonable for the purpose of constructing a dwelling or for the safety of the occupants, the tree is not protected. * The removal of dead wood from the tree will have no detrimental impact on the health or structure of the tree, however, unlike the work already carried out, any future pruning must not involve the use of spikes for accessing the tree. While the applicants appear to have construed Mr Smith's assertion that epicormic shoots are weakly attached as a reason for removing them, these shoots play an essential role in maintaining the tree and no orders will be made for their removal. The shoots are small and should they blow off in a strong wind, they are unlikely to cause any damage or injury in the usual time frame. While Mr Paroissien suggests removal of diseased branches, when questioned as to what disease he meant, Mr Paroissien qualified his recommendation to include branches that may be decayed on their upper side and not visible from the ground. * Contrary to the applicants' contentions I find that the tree (and its neighbours) contributes to the privacy of the respondents' dwelling - if not from the applicants' property, from further away. It would also provide shade and protection from the afternoon sun. While Mr Richards concludes its removal would not significantly affect any threatened species, or be currently used by koalas, it nonetheless will make a contribution to the local ecosystem and to biodiversity - as demonstrated by the photographs in Exhibit 4. * The trees can be seen from the surrounding streets and contribute to public amenity. They are perhaps more prominent and more significant as a consequence of the removal of trees from other properties. In my opinion they contribute to the landscape character of the locality. * The respondents have taken steps to prune the tree. 69On balance, I find there is no evidence to support the removal of this tree however orders will be made for the periodic removal of dead wood in excess of 40mm in diameter at its base. An additional order will be made for an aerial inspection of the unusual junction at the base of the branch discussed in [66] and its removal if in the opinion of a level 3 arborist, it represents an imminent risk of failure. However, in the circumstances, I am not persuaded that the orders should include the removal of any other branches. 70In regards to Ms Gerathy's submission that the Tree Dispute Principle in Black v Johnson should apply, as any future damage arising from dead wood falling from Tree 1 would potentially be to the pool fence, it would seem that the pool is reasonably sited on the block and that the normal requirement for a tree owner to pay for maintenance should apply. Tree 2 71While slightly closer to the applicants' property than Tree 1, this tree appears in better condition with less dead wood (I note that the photographs included in the arborists' reports are helpful) and branch attachments appear sound. 72The applicants contend that a green branch about 2.5m long fell from this tree in 2011 however there is no supporting evidence to substantiate this. While there are some signs of past branch failure on the tree, the size of the stubs indicates the branches were unlikely to be especially large. In regards to Mr Paroissien's observation that the canopy is suppressed, in my opinion this is simply a consequence of normal competition for sunlight observed in any eucalypt forest and is not an indication of anything abnormal. This applies to the other trees he describes as being suppressed. An alternative description is that the tree has a co-dominant position within the remaining stand of trees. 73I am not satisfied that the size of any remaining dead wood in this tree is sufficient to satisfy any element of s 10(2). Similarly, there is no evidence to substantiate Mr Smith's opinion as to likely whole tree failure. 74Therefore, as s 10(2) is not satisfied for this tree, the Court has no jurisdiction to make any orders for any interference with it. Trees 3 and 4 75The applicants maintain that at least three branches from one or both of these trees have landed on their property. They contend that one dead branch was found on the roof, and one green branch up to about 2m in length (in 2012) and another 3m long branch that was mostly dead but with some shoots were found on their property. As with Tree 2, there is no photographic evidence of these branches or of any damage or injury arising from those branches. 76The photographs in the arborists' reports show some terminal dead wood however, I am not satisfied that these branches are likely to cause damage or injury should they fail in the usual time frame. Apart from the fact that the branches are short and of small diameter, there are at least two large Paperbarks between these trees and the applicants' property. The Paperbarks are likely to provide a degree of protection by catching small branches that may be torn off the Eucalypts in strong winds. 77In regards to Mr Smith's opinion about instability, while there was certainly moist soil at the base of the embankment near these trees, presumably from the spring, this species of tree is naturally found in moist areas. As with the other trees I am not satisfied that there is any evidence to support his recommendation that the trees should be removed on the basis of potential wind throw. 78I cannot be satisfied on the evidence that any element of s 10(2) is met for these trees and no orders can be made for any intervention with them. Tree 5 79The applicants contend that two branches fell from this tree in or about 2007/2008. As with the other branches, there is no photographic or other evidence of the branches or that they came from Tree 5. It is feasible that the branches may have come from the large section of Tree 6 that overhung their property, which is much closer than Tree 5, and which according to Mr Stanford contained a lot of dead branches. 80As with Trees 3 and 4 a Paperbark between this tree and the applicants' property would afford some protection from windblown branches. I am not satisfied that the remaining dead wood poses any significant risk of future damage or injury. 81In regards to the potential instability of this tree, Mr Smith maintains the depth of the trench at the base of this tree is about 350mm - substantially more than the 100-150mm depth stated by the first respondent. Given the first respondent's evidence on site that after the installation of the lateral drains, the south-western section of his property was filled with up to 300mm depth with gravel, I see no reason the believe that the initial trenching was any deeper than stated by the first respondent. I also note that at the time the trenches were excavated, there was more vegetation, including trees, in that area; therefore any roots that may have been cut may have been from other plants. I also note that the trenching was done more than six years ago and the trees are growing in an environment conducive to root growth. The first respondent maintains that no woody roots were cut when he installed the lateral pipes. Given the distance of the dividing fence from any of the trees, I am not satisfied that the installation of the agricultural pipe along the fence can have had any significant impact on the stability, or indeed health, of Tree 5 or any other of the trees. 82Mr Paroissien raises some concerns about the 'butt sweep' of the trunk. In oral evidence he opined that this might have occurred early in the tree's life. He also raises some concerns about possible past damage to the roots, which in his opinion should be further investigated. While this may be something the respondents decide to follow up, I am not satisfied to the extent required by s 10(2) that the likelihood of damage or injury in the usual timeframe, as a consequence of these factors, engages the Court's jurisdiction to make orders. However, the respondents are clearly now aware of these issues. 83Therefore, in regards to Tree 5, I am not satisfied to the necessary extent that any element of s 10(2) has been met. Conclusions and Orders 84In the past seven years, at least seven branches in excess of 2m in length are alleged to have landed on the applicants' property. Since the most recent incident in late 2013, the respondents have undertaken remedial action. While this may not be to the extent desired by the applicants, the findings of the Court are that only one of the five trees satisfies the jurisdictional test in s 10(2). In that instance, orders will be made for periodic pruning. 85As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 86As a consequence of the forgoing, the Orders of the Court are: (1)The application to remove the five trees the subject of this application is dismissed. (2)By 30 January 2015, the respondents or their agents are to engage and pay for an AQF level 3 arborist to remove all dead wood in excess of 40mm in diameter at its base from Tree1 (Eucalyptus resinifera) shown on the survey plan in the Statement of Evidence prepared by Mr Guy Paroissien dated 26 August 2014. In addition, the arborist is to inspect the attachment and structural integrity of the unusually marked branch on the western side of the canopy of Tree 1. If in the opinion of the arborist that branch is likely to fail within the next 12 months, the branch is to be removed. If not, the branch is to be retained. (3)The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees, in particular, climbing spikes are not to be used to access the trees. The work must also be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The respondents or their agents are to notify any tenants of any access required by the arborist for the purpose of quoting and or carrying out the work on reasonable notice. (5)The removal of dead wood in orders (2) and (3) is to be carried out every two years within two weeks either side of the anniversary of the initial pruning in order (2) until such time the tree is removed. (6)The exhibits except A and B are returned. _________________________ Judy 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. Decision last updated: 30 September 2014