Torresan v Sawyer & anor [2015] NSWLEC 1012

Land and Environment Court New South Wales

Medium Neutral Citation: Torresan v Sawyer & anor [2015] NSWLEC 1012 Hearing dates: 30 January 2015 Decision date: 30 January 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part. See orders at paragraph (16). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); risk of damage and injury; application upheld; one tree to be removed and one tree pruned; replanting ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Liliana Torresan (Applicant)

Geoffrey Sawyer (First Respondent) Michelle Sawyer (Second Respondent) Representation: Liliana Torresan, litigant in person (Applicant)

Geoffrey Sawyer and Michelle Sawyer, litigants in person (Respondents) File Number(s): 20734 of 2014

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background 1. This matter concerns two trees in a residential garden in Balmain. The property on which the trees grow is owned by Michelle and Geoffrey Sawyer ("the respondents"). Their neighbour, Ms Torresan ("the applicant"), has applied to the Land and Environment Court seeking orders pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Trees Act") for one tree to be removed and for the other to be pruned annually. 2. The trees are both native Eucalypts protected by Leichhardt Municipal Council's Tree Preservation Order (TPO). 3. The Sawyers value their trees. They say they would remove the trees if necessary, but they have taken appropriate steps by applying to Council for removal of Tree 1 and by having the tree inspected by an arborist. Council has not permitted removal of the tree and the Sawyers' arborist is undertaking monitoring. 4. Before making any orders the Court must be satisfied of the jurisdictional test at s 10(2) of the Trees Act. Ms Torresan does not allege that any damage has been caused by the trees, but says Tree 1 is likely to cause injury to a person or damage to her property and that Tree 2 is likely to cause damage to her property. 5. Ms Torresan has taken steps to deal with the perceived risk by bringing it to the respondents' attention and asking them to remove and prune the trees. 6. The Sawyers have taken appropriate steps to respond by assisting with an application to Council and by engaging a consulting arborist to assess the trees. They are not tree experts and thus rely on information provided by those who are professional tree managers. 7. Council's decision not to allow removal of Tree 1 is based on the tree's contribution to the local landscape and the lack of evidence that it poses a risk that could only be managed by removing the tree. 8. Mr Gary Clubley, the consulting arborist engaged by the Sawyers, appeared before me in Court yesterday, not as an expert witness but as the respondent in another matter. The applicant in that matter asked me to recuse myself from the proceedings, based on my position some years ago on a professional committee that also included Mr Clubley. As I had no other professional or social relationship with Mr Clubley, nor have I had any ongoing relationship with him since then, I did not perceive there to be the possibility of any actual or apprehended bias and did not recuse myself. Though the Sawyers rely on his report, Mr Clubley did not attend today's hearing in Balmain as an expert witness. The parties had no objection to my hearing the matter. 9. Mr Clubley assessed Tree 1 and recommended that it be monitored for any movement. He identified a possibility of changes within the tree's root plate. He has subsequently monitored the position of the tree's stem using a laser measuring device. While some movement has been recorded, he says this may be due to seasonal growth and has recommended ongoing monitoring. The Sawyers say that if the tree is found to be unstable they will arrange its immediate removal.