Land and Environment Court New South Wales Medium Neutral Citation: English v Dagg & anor [2015] NSWLEC 1392 Hearing dates: 23 September 2015 Date of orders: 23 September 2015 Decision date: 23 September 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 20. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree removal. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Stephen English (Applicant) Gregory Dagg (First Respondent) Tracee Dagg (Second Respondent) Representation: Stephen English, litigant in person (Applicant) Gregory Dagg, litigant in person (Respondents) File Number(s): 20591 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. During a storm in April 2015 two large branches fell from a neighbouring tree on to Mr English's New Lambton property, damaging an awning and roofing tiles on his dwelling. Mr English ('the applicant') has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the removal of three large trees within a neighbouring property, close to the common boundary. The property on which the trees stand has been owned by Greg and Tracee Dagg ('the respondents') for six years. Apart from removal of the trees, Mr English's application also sought compensation for the cost of repairing damage caused by the fallen limbs. However, as the likely outcome of these proceedings became clear during the hearing, and with some sympathy for the financial burden about to befall the Daggs, Mr English withdrew the compensatory element of his application. The framework of the Trees Act 1. Before the Court can make orders, it must be "satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person" (s 10(2) of the Trees Act). If so satisfied, the Court is not obliged to make the orders sought by the applicant, but "may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree" (s 9 of the Trees Act). These sections of the Trees Act refer to "the tree" in the singular; hence the jurisdictional tests must be satisfied for each tree that is the subject of the application before orders can be made for the tree. Before determining an application the Court must consider a range of matters set out at s 12 of the Trees Act, including environmental benefits provided by the trees. Have the trees caused damage? 1. There is no dispute that limbs fell from one of the trees, causing damage to Mr English's property. While Mr English believes the limbs fell from the middle one of three trees ('Tree 2'), Mr Dagg believes they fell from the westernmost tree ('Tree 1'). Are the trees likely to cause damage to the applicant's property in the near future? 1. Neither party has engaged an arborist to assess and report on the trees. The onsite hearing allowed observation of all above-ground parts of the three trees, these observations being made from the ground without the benefit of any assessment via aerial access. I apply my own arboricultural expertise and experience in making these observations and drawing the following conclusions. 2. The Daggs' land slopes downward to the north from the front of their property at the street. The three mature trees are in a row across the rear of their property, a considerable distance from their own dwelling but only several metres from the common boundary with Mr English's property and from Mr English's dwelling. From a distance two of the trees appear healthy, while the third clearly has extensive crown dieback. From the west they are: * Tree 1, a Lemon-scented Gum (Corymbia citriodora) approximately 18 metres tall with a stem diameter of approximately 500 mm; * Tree 2, a Southern Mahogany (Eucalyptus botryoides) approximately 24 metres tall with a stem diameter of approximately 800 mm; and * Tree 3, a Southern Mahogany (Eucalyptus botryoides) approximately 23 metres tall with a stem diameter of approximately 600 mm. Tree 1 1. The Lemon-scented Gum appears healthy in its crown. However close inspection at ground level revealed a large basal stem wound extending for almost a third of the stem's circumference. Stem growth above the wound appears healthy, but at ground level and below there is no live tissue (bark, cambium or phloem) around this part of the stem. It follows that all roots extending outward from this section of the stem are dead, as they are not receiving any sugars from the crown. These roots are likely to be decaying. The wound appears to be approximately 10 years old. The wound and dead roots are on the uphill side of the tree. Roots on the downhill side are providing sufficient water and nutrients for the crown to remain healthy, but roots on the upper side are unlikely to continue providing the structural support required for the tree to remain upright. It is my view that failure of these roots is likely in the near future. The tree would most likely fall down the slope if its uphill roots fail, in which case it would cause significant damage to Mr English's property. There are no suitable alternatives to tree removal for reducing the risk. 2. I took the following photographs of Tree 1 during the onsite hearing. Tree 1 The stem of Tree 1 The basal stem wound Tree 2 1. This Southern Mahogany also appears healthy from the south, but inspection of the northern side of its stem showed a large wound several metres above ground level. Mr Dagg says a termite nest was recently removed from this area of the stem. Around the entire northern half of the stem's girth, several metres above ground, there is no living bark, cambium or phloem. This significantly reduces the tree's ability to provide roots with sufficient sugars. It leaves a large area of the stem open to infestation by pathogens such as wood-decaying fungi. This is also likely to limit supply of water and nutrients to limbs immediately above the wound. These factors, on my assessment, result in a higher risk of limbs failing, especially on the northern side of the tree, where they would be likely to cause significant damage to Mr English's property. Considering the extent of the wound, there are no suitable alternatives to tree removal for reducing the risk. 2. I include the following photographs of Tree 2 taken during the onsite hearing. Tree 2 The large stem wound on Tree 2 extends for more than half its girth Tree 3 1. Roughly half of the crown of this Southern Mahogany is dead, above a decaying section of the stem. From the northern side, large fungal fruiting bodies can be seen on the stem several metres above ground level. The fruiting bodies belong to a wood-decaying fungus, their size indicating that the fungus has been active within the stem for many years. Just above this the stem kinks to the south. It is my view that stem failure is likely in the near future, although it is most likely to fall away from Mr English's dwelling. Considering the extent of stem decay and the tree's form, there are no suitable alternatives to tree removal for reducing the likelihood of failure. 2. Below are photographs of Tree 3 taken during the onsite hearing. Tree 3 Fungal fruiting bodies on the stem of Tree 3 Are the trees likely to cause injury? 1. Failure of the roots of Tree 1 could cause the tree to fall to the north, where it would be likely to cause injury to people on Mr English's property. Failure of large limbs of Tree 2 would also be likely to fall onto Mr English's property and cause injury. Failure of the stem of Tree 3 would be likely to cause injury to people on the respondents' property or the neighbouring property to their east. Failure of large dead branches from Tree 3 may also cause injury to people on Mr English's property. Consideration of other matters 1. The trees provide many benefits: they can be seen from public areas and provide amenity to the neighbourhood; they contribute to local landscape character and to the landscaping of the respondents' property; they provide shade and cooling; they contribute to the area's overall canopy cover. 2. The extent of pruning required to reduce the risk would leave each tree looking unattractive, with poor form, and with limited useful life expectancies. I do not regard this as a viable option. 3. A permit would ordinarily be required from Newcastle City Council for the trees' removal. The respondents were informed at the hearing that Council's consent is not required for carrying out any Court orders within this judgment. 4. Mr English has taken appropriate action in alerting the respondents to his concerns regarding the trees. The Daggs had obtained a quote for removing the dead sections of Tree 3. The other two trees appear healthy and there had been no obvious reasons for the Daggs or anyone without arboricultural training to have suspected their structural integrity. Conclusions 1. Each of the three trees meets the jurisdictional test at s 10(2) of the Trees Act: they are likely to cause damage to the applicant's property in the near future or they are likely to cause injury to a person. To minimise this risk, I can see no suitable alternatives to removing the three trees. The orders will require the respondents to remove the trees leaving stumps no taller than 4 metres. Of course, they may leave shorter stumps or remove the stumps entirely if they so wish. The works will cost a considerable sum so the respondents will be provided a 90-day timeframe in which to carry out the orders. 2. Tree 1 and Tree 3 partly overhang other neighbouring properties, the owners of which are not involved in these proceedings. Therefore the respondents will be required to notify them of the works also. 3. Removal of three mature trees will result in a loss of tree canopy cover, which should be replaced by new plantings. Orders 1. As a result of the above findings and conclusions, the orders of the Court are: 1. Within 90 days of the date of these orders the respondents are to engage a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove Tree 1, Tree 2 and Tree 3. The three trees are to be removed to 4 metres above ground level or lower, with herbicide applied to the cut stumps (if they remain) to prevent them reshooting. These works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 2. The respondents are to give seven days' notice of the works in (1) to the applicant, as well as to neighbours immediately to their east and west. 3. The applicant is to provide any access required to his property for the works to be completed during reasonable hours of the day. 4. Within 6 months of the date of these orders the respondents are to plant three trees in the rear section of their property, at least one metre from any boundary. Trees are to be native species of the respondents' choosing, but must be species that grow to at least 10 metres height at 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: 28 September 2015