Land and Environment Court New South Wales Medium Neutral Citation: Heston v Morpeth & anor [2017] NSWLEC 1421 Hearing dates: 08 August 2017 Date of orders: 08 August 2017 Decision date: 08 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Removal ordered see [15] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury Legislation Cited: Trees (Disputes Between neighbours) Act 2006 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Nathan Heston (Applicant) Christopher Morpeth (First Respondent) Leah Wilmot (Second Respondent) Representation: Applicant: N Heston (Litigant in person) Respondents: C Morpeth & L Wilmot (Litigants in person) File Number(s): 143391 of 2017 Publication restriction: No judgment 1. COMMISSIONER: The applicant, who owns a property in Como, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the removal of a Eucalypt growing on an adjoining property. 2. The orders are sought on the basis that branches falling from the tree have damaged, and could in the near future cause damage to property on his land or could cause injury to anyone on his land. The applicant is also concerned about whole tree failure. 3. The respondents have owned their property for less than 12 months and know very little about trees but they would not like to have the tree cause damage to their neighbour's property or injury to anyone. 4. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (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. 1. Neither party engaged an arborist to provide independent expert opinion. The following comments are based on the arboricultural expertise I bring to the court. The tree was inspected from the ground from both properties; binoculars were used to inspect the upper portions of the canopy. 2. The tree is a late mature Eucalyptus piperita (Sydney Peppermint) of average health. It is highly likely to be a remnant of the original bushland. The tree comprises two main stems; it was difficult to tell whether there was any included bark between the co-dominant stems. The canopy of one of the main trunks overhangs the applicant's backyard and the structures, barbecue area and play equipment located there. 3. The application claim form includes photographs of a number of branch failures and fallen branches on or very close to the applicant's property. The most recent failure was a large live structural branch in excess of 300mm in diameter at the breakage point that fell during a storm in January this year. This branch caused damage, albeit minor, to lattice on the dividing fence. 4. Throughout the canopy, but particularly on the section of trunk overhanging the applicant's property, there are the remains of other failed branches, some of a considerable size. According to the applicant, the branches that have failed have been live branches. There are also a number of other failed branches in the section of the tree which principally overhangs the respondents' front yard. The branches have generally failed between 1 and 3 metres from the main junction with the trunk or first order branch and not at branch unions. On the sections of branch below each of the more recent failure points, there were no obvious signs of any defect that may have predisposed the branch to failure. While some of the photographs show borer damage, this appears to be in dead branches. 5. On the evidence before me, and with the benefit of inspecting the tree from both properties, I am satisfied that the relevant tests in s 10(2) are met and the Court's jurisdiction to make orders is engaged. 6. The making of orders requires consideration of relevant matters under s 12 of the Trees Act. The comments below incorporate the relevant subclauses. 7. The tree is wholly on the respondents' land and this land adjoins the applicant's property. As a probable remnant, the tree is likely to contribute to the local ecosystem and to biodiversity. It is one of a number of trees on the respondents' property and contributes to the overall amenity of the land. It can be seen from the public domain and the canopy contributes to the bushland character of the area; it thus contributes to public amenity. 8. In response to the Class 2 application, the respondents applied to Sutherland Shire Council to remove the tree. An electronic version of the consent was read during the on-site hearing. Removal was not approved however the consent provides for tree maintenance work as appropriate. In my opinion the consent is so broad, non-specific and unclear that it is not helpful to anyone. 9. While tree removal remains the last option in tree management I consider that this is appropriate in the particular circumstances of this case. Again with the expertise I bring to the Court, I consider the branch architecture of the tree to be such that reduction pruning is not feasible as there are few if any lower lateral branches which would sufficiently contain the canopy and reduce the end loading that may have contributed to the failures. Even if the stem closest to the applicant's property were removed, the risk to anyone on the respondents' property remains. The January 2017 failure was of a large first order branch arising from the other trunk and not from the trunk closest to the applicant's property. 10. Therefore, while the tree provides a number of benefits, in the circumstances of this matter, the benefits do not outweigh the risks associated with a history of large branch failures. Orders will be made for the removal of the tree. As discussed on site, the aim is to make the tree safe. Leaving a stump of up to two metres high is sufficient as long as the stump is poisoned. For aesthetic reasons the respondents may wish to have the tree removed to ground level. 11. As a result of these findings the Orders of the Court are: 1. The application to remove the tree is granted. 2. Within 60 days of the date of these orders the respondents are to have engaged and paid for an arborist with a minimum qualification in Arboriculture of AQF level 3 and with appropriate insurance cover, to remove the Sydney Peppermint to a maximum height of 2m above ground, or if the respondents wish, to ground level. The remaining stump is to be poisoned to prevent suckering. The work is to be completed within this time frame. 3. The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 4. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (2). ________________________ Judy Fakes 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: 08 August 2017