Land and Environment Court New South Wales Medium Neutral Citation: Marks v Perham [2018] NSWLEC 1390 Hearing dates: 20 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) Within 60 days of the date of these orders, the respondent is to engage a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to remove the three (3) Syzygium paniculatum trees which are the subject of these proceedings, with their stumps to be the subject of: a) stump grinding or b) poisoning by the said arborist. (2) The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. (3) The respondent is to give the applicants at least 7 days' notice of the works in (1). (4) During reasonable hours of the day the applicants are to allow any property access required during the works for the purpose of dismantling the trees and cleaning up debris, excluding access to or from the street. (5) The exhibits are returned. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to terracotta pipes – not shown which tree caused damage – risk of damage or injury – orders by consent Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Breen & Anor v Caronna & Anor [2008] NSWLEC 293 Fifield v Sang and Wang [2018] NSWLEC 1377 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Aidan Marks (First Applicant) Ryan Swanson (Second Applicant) Benjamin Perham (Respondent) Representation: Solicitors: R Schmidt; Bull, Son & Schmidt (Applicants) P Brown; HWL Ebsworth (Respondent) File Number(s): 2018/87208 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Mr Perham (the respondent) has a row of three Magenta Cherry trees (Syzygium paniculatum) growing on his property adjacent to the common boundary with the property of Mr Marks and Mr Swanson (the applicants). The condition of the trees has deteriorated recently – two trees now have less than 50% live foliage in their crowns. Their amenity has been reduced in the past by poor pruning that has left branch stubs and adversely affected crown form. 2. The parties have spent some time and effort disputing what may have caused the trees' condition to decline and what needs to be done. In March 2018 Mr Marks and Mr Swanson applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for Mr Perham to remove the three trees and for rectification of a sewer pipe they say was damaged by roots of the trees. 3. The parties have each filed reports by arborists – the applicants have filed two reports by Trevor Hawkeswood; the respondent has filed a report from Peter Castor. The reports present very different pictures of the situation. 4. Despite their prolonged differences, prior to the hearing the parties negotiated and proposed consent orders. Even so, the jurisdictional tests of the Trees Act must be satisfied before the Court can make those orders, as noted by Sheahan J in Breen & Anor v Caronna & Anor [2008] NSWLEC 293, at [6]: …They certainly can make consent orders to dispose of a tree dispute, but they must first be satisfied of the matters in s.10, and must consider also the matters in s.12, of the Tree Disputes Act. These sections are comprehensive in their terms, and simply must be observed before orders are made. The orders must be ones that the Court might make to deal with the situation after considering matters at s 12. 1. Considering the contrasting opinions and recommendations in the reports filed with the Court, an onsite view was deemed necessary, despite the Court being asked to resolve the situation earlier, without such a view. The onsite hearing proceeded as listed on 20 July. Damage to the applicants' sewer pipe 1. The applicants allege the trees have damaged their sewer pipe. Photographs show roots within and around parts of a pipe. However, if this is the case, they concede they have not shown, as is required by the Trees Act, to which tree or trees the roots belong. The application includes all three trees, but each tree must be addressed separately and the test at s 10(2) must be satisfied for each tree before orders can be made for that tree, as highlighted at [20] in Fifield v Sang and Wang [2018] NSWLEC 1377. Merely finding that tree roots have damaged the pipe would not allow the Court to make orders for all three trees, as that might result in orders being made for two trees that had caused no damage and so would not satisfy the jurisdictional test. The Court cannot make orders on this element of the application. Risk of damage or injury 1. Two trees have lost more than half their foliage. Their crowns have relatively poor structural form. Small dead branches have fallen into the applicants' garden. I am satisfied that larger dead branches are likely to fall in the near future and cause damage or injury. 2. The trees' amenity value is now so reduced that, when considering the balance of the trees' benefits against the risk and remedial works required, as I am required to do at s 12 of the Trees Act, they do not justify the expense of pruning. These two trees should be removed. 3. The third tree also has poor crown form resulting from past lopping. Its crown retains more live foliage than the other two, but following removal of the other two trees the third tree would be left exposed to greater wind loads and, in my view, would be likely to shed large limbs. The low level of amenity it would provide into the future does not warrant the remedial works that would be required for its retention, so it too should be removed. Nature of the orders 1. I am satisfied that all three trees might cause damage in the near future, and ordering their removal is appropriate. 2. A further order that the parties proposed (that there be no further orders in future in relation to the three trees) is not an order I would make here and I informed the parties of this. The orders made here dispose of this application. Should circumstances change (although it is difficult to imagine how they might, once the trees are removed), the applicants could make a new application that may well result in further orders. Should further evidence be uncovered without any material change in the relevant circumstances, it is unlikely a new application could be made – see Zangari v Miller (No 2) [2010] NSWLEC 1093. 3. I informed the parties that an order would be required to ensure access to the applicants' property is available if required. 4. The Court notes that the parties have agreed there be no order for costs. The Court also notes that the parties have executed a deed of settlement and release Orders 1. As a result of the foregoing, the orders of the Court, by Consent, are: 1. Within 60 days of the date of these orders, the respondent is to engage a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to remove the three (3) Syzygium paniculatum trees which are the subject of these proceedings, with their stumps to be the subject of: 1. stump grinding or 2. poisoning by the said arborist. 1. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 2. The respondent is to give the applicants at least 7 days' notice of the works in (1). 3. During reasonable hours of the day the applicants are to allow any property access required during the works for the purpose of dismantling the trees and cleaning up debris, excluding access to or from the street. 4. The exhibits are returned. ____________________________ D Galwey Acting Commissioner of the Court ********** Amendments 27 August 2018 - Correction - list of cases 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: 27 August 2018