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. Findings regarding the trees 1. The onsite view allowed observations of both trees and the properties. I rely on my own arboricultural expertise, along with material provided by the parties, in making the following findings. 2. Tree 1, identified by Mr Clubley as a Tasmanian Blue Gum, is close to the common boundary and leans towards and over Ms Torresan's property. The ground between the base of the tree and the fence is at least half a metre lower than the ground on the other side of the tree, to the southeast. The crown of the tree appears somewhat sparse. The tree's stem bifurcates at about 6 metres, so that two roughly equally sized stems extend above this. The fork is narrow and appears to contain some included bark. There is some reaction wood growth visible in stem wood adjacent to the fork. A long and narrow wound extends down the stem from next to this fork. Exposed wood does not appear decayed but further reaction wood in the stem suggests there may be some weakness in this section of the stem resulting from internal decay. Each of these defects in isolation indicates potential weak areas in the stem, bit in close proximity they point to a higher risk of failure. Mr Clubley's report identifies the stem wound but does not discuss its proximity to the narrow fork in the stem. He states that he did not carry out further testing of the stem "as the priority was to determine the stability of the root plate." As Mr Clubley did not attend the hearing he was not questioned on his report. 3. Mr Clubley monitored Tree 1's stem position over six months from May to November 2014. Over that time the south-eastern side of the stem has moved toward the applicant's property by approximately 30 mm at the highest of three markers, halfway up the stem. Measurements at the lower two markers are proportionally less for their locations, indicating accuracy in the measurements. It follows that the top of the tree's crown has moved to the north (the direction in which the tree leans) a proportionally greater distance, likely to be some 5—10 cm or more. While this range of movement might not seem great, it is significant for a tree of this size. I am not convinced by Mr Clubley's suggestion that movement is most likely due to seasonal growth. The crown appears to be relatively sparse, so neither the crown mass, nor the growth of new stem and branch wood provided by sugars from the sparse foliage, is likely to have increased significantly over the six-month period. I find it more likely that movement is due to gradual failure of the root plate. That this cannot be observed clearly at ground level is not surprising as the root plate is covered by brick pavers. The pavers have lifted slightly but it is not clear over what period this has occurred or if it is only due to root growth. Close to the tree, any proportional lifting of the root plate is likely to be so small as to be difficult to observe. Gradual decay of the root system of the nearby maple that was removed 18 months ago may also contribute to changes within the gum's root plate. 4. In my view, either of the identified weaknesses in the tree may lead to failure of the entire tree (root plate failure) or half of the tree (stem failure at the fork) onto Ms Torresan's property, where it would be likely to cause damage or injury. Failure is likely within the near future. Therefore the jurisdictional test at s 10(2) in regard to Tree 1 is satisfied and orders can be made for this tree. Considering the nature of the defects, tree removal is the most appropriate action and will be ordered. 5. The orders that Ms Torresan seeks for Tree 2, identified as a Bangalay, are for it to be pruned clear of her fireplace chimney. The tree forks into three main limbs approximately one metre above ground. The fork appears well formed and structurally sound. The limb that has grown northward towards the chimney is long, and towards its end is more horizontal than vertical, with considerable weight of foliage at its ends. Its angle and weight give rise to a risk of failure, which would be likely to damage Ms Torresan's roof or guttering. This satisfies the jurisdictional test at s 10(2) for Tree 2 and pruning will be ordered to minimise the risk of limb failure. There are suitable lateral branches to which the end of the limb can be reduced. This will provide significant clearance to Ms Torresan's dwelling, so I do not see any need to order annual pruning. 6. Considering Council's guidelines (Council filed an extract of Leichhardt Development Control Plan 2013) the resulting loss of tree canopy should be offset by appropriate replanting, which will be ordered here as allowed by s 9 of the Trees Act. Orders 1. Therefore the Orders of the Court are: 1. The application is upheld in part. 2. Within 30 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the Blue Gum (Tree 1) in their rear garden to no higher than one metre above ground level. 3. Within 30 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the Bangalay (Tree 2) in their rear garden, reducing the long northern limb by pruning it back to available lateral branches and providing at least 2 metres' clearance to the applicant's chimney. 4. The works in (2) and (3) are to be done in accordance with the guidelines of the Workcover Code of Practice for the Amenity Tree Industry and AS4373 Pruning of Amenity Trees (Tree 2). 5. The respondents are to give the applicant at least 7 days' notice of the works in (2) and (3). 6. The applicant is to allow any access required for the works in (2) and (3) during reasonable hours. 7. Within three months of the date of these orders the respondents are to plant a Water Gum (Tristaniopsis laurina) or another locally indigenous species that grows to at least 10 metres in height at maturity. The tree is to be planted in their rear garden at least one metre from any boundary and is to be maintained to maturity. ____________________________ D Galwey Acting 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: 09 February 2015