Land and Environment Court New South Wales Medium Neutral Citation: Lancaster v Dwyer [2018] NSWLEC 1202 Hearing dates: 18 April 2018 Date of orders: 18 April 2018 Decision date: 18 April 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: 1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); risk of damage or injury; respondent has carried out most of an arborist's recommendations. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Catherine Lancaster (Applicant) Robert Dwyer (Respondent) Representation: C Lancaster, litigant in person (Applicant) R Dwyer, litigant in person (Respondent) File Number(s): 17/376551 Publication restriction: Nil Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Three tall pine trees grow in the rear yard of Mr Dwyer's Pearl Beach property. Branches have fallen from the trees in the past, damaging a pipe and a barbeque on Ms Lancaster's property. 2. Ms Lancaster (the applicant) is concerned that the trees will cause further damage in future, or injury, and has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for Mr Dwyer (the respondent) to remove all three trees. In the alternative, she seeks pruning of the trees and regular ongoing inspections by an arborist. Onsite hearing 1. The hearing took place onsite. I bring my own arboricultural experience and expertise to observations made at the hearing. The three pines appear to be in good health with fair structure. Two of the trees have bifurcated stems, with some bark included within the narrow forks, but there are no signs that these forks are likely to fail in the near future. The trees have been pruned recently. There are no signs of major defects within their crowns. Some deadwood remaining in the two trees furthest from Ms Lancaster's dwelling does not overhang her property. Framework of the Trees Act 1. There is no dispute that two branches from the pines caused damage when they fell, breaking Ms Lancaster's barbeque and a pipe in the ground on her property. According to s 10(2) of the Trees Act, I can make orders for the trees from which those branches fell. If I am satisfied that any trees pose a risk of damage to Ms Lancaster's property in the near future, or a risk of injury, I can make orders for those trees. Before making any orders I must consider a range of matters at s 12 of the Act. Evidence filed by the parties 1. Ms Lancaster's evidence includes weather records for the area, highlighting strong winds from the southwest. 2. Mr Dwyer provided: a report on the three trees by consulting arborist Paul Shearer; a further arboricultural report following an aerial (climbing) inspection, by his son Glen Dwyer, an AQF level 5 arborist; photographs of the trees before and after pruning; and records of mediation and correspondence between the parties. I pointed out to Mr Dwyer that providing a report from his son would inevitably give rise to doubts as to its objectivity. He said his son is a qualified arborist and it can be difficult to get one to come to this area. The Court accepts the evidence provided, but I give it the weight I think appropriate. Mr Glen Dwyer's report at least provides useful photographs taken from within the crown of one tree, showing features that might not be readily visible from the ground. The applicant's submissions 1. Ms Lancaster is concerned that these are tall trees, too close to her house. She says strong winds from the southwest can blow branches onto her property, as has already occurred, so it is not just limbs above her property that pose a risk: all three trees pose a risk to her property. She says the weather records show that strong winds were recorded from the southwest during recent years. 2. Ms Lancaster is not satisfied that Mr Shearer considered all risk factors when preparing his report. She thinks he ignored the size of the trees and the ability for winds to blow branches to her property. She says he was unaware of the full history of limb failure. Another arborist told her the pines are not Pinus radiata, as identified by Mr Shearer. 3. Ms Lancaster is also dissatisfied with the aerial inspection. She highlighted the lack of objectivity possible from the respondent's son. She said Mr Glen Dwyer did not carry out the full aerial inspection recommended by Mr Shearer, but only climbed one tree. 4. Ms Lancaster is not satisfied with the extent of recent pruning works. She says remaining limbs can fall and cause more damage or injury. She wants the trees removed. Failing that, she wants regular inspections and pruning, with written reports provided to her. The respondent's submissions 1. Mr Dwyer does not dispute that branches from his trees have damaged Ms Lancaster's property. He says he has taken necessary steps to maintain the trees and prevent further incident. He engaged a consulting arborist from Sydney to assess and report on the trees. He has carried out the arborist's recommendations apart from deadwood removal in the trees furthest from, and not overhanging, Ms Lancaster's property. He concedes that his son only accessed the crown of one tree for the aerial inspection but says that, because the trees are so close to each other, this allowed sufficient assessment of the crowns of all three trees. The trees have been pruned, with most of the limbs above Ms Lancaster's property now removed. No orders are required 1. Despite the presence of stem bifurcations in two of the trees, there is no sign that these stem unions are likely to fail in the near future, a period the Court usually regards as 12 months since Yang v Scerri [2007] NSWLEC 592. There are no other major defects in the trees' crowns apparent from the ground or in the photographs in Mr Glen Dwyer's report. 2. Mr Shearer, consulting arborist, holds a Diploma in Horticulture (Arboriculture) and the International Society of Arboriculture's Tree Risk Assessment Qualification (TRAQ). He carried out a risk assessment of the trees. There is no reason to doubt that he considered all relevant factors regarding risk, as would normally be done using the TRAQ methodology. He was aware of at least one recent limb failure. Prevailing winds, wind strength and direction would all be considered as part of any thorough tree risk assessment. The species may have been misidentified but that would not alter the outcome of Mr Shearer's assessment, nor affect this judgment. 3. I have considered the matters at s 12 of the Trees Act. Of particular relevance here is s 12(h)(ii): any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage. 4. The respondent, Mr Dwyer, arranged for the three pine trees to be pruned recently. He is aware of the potential for the trees to cause damage and has recently taken reasonable action to prevent damage. Mr Shearer's report recommends regular inspections. All tree owners have a responsibility to take reasonable measures to manage their trees. There is nothing about the situation here that requires orders from the Court for the respondent to do any more than that. Orders 1. As a result of the foregoing, the Court orders that: 1. The application is dismissed. ____________________________ 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: 24 April 2018