Land and Environment Court New South Wales Medium Neutral Citation: Terenzini v Clulow [2020] NSWLEC 1109 Hearing dates: 13 February 2020 Date of orders: 27 February 2020 Decision date: 27 February 2020 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that: (1) The application is granted. (2) Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the three trees that are the subject of this application to no more than one metre above ground level. (3) These works must be carried out in accordance with the 2016 Safe Work Australia "Guide to managing risks of tree trimming and removal work". (4) The respondent is to give the applicant two days' notice of the works in (2). (5) The applicant is to allow all access required to complete the works in (2) during reasonable hours of the day. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – whether the trees have caused damage – whether the trees are likely to cause damage – benefits of the trees – whether the trees can be retained – tree removal ordered Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Texts Cited: Safe Work Australia (2016) "Guide to managing risks of tree trimming and removal work" Category: Principal judgment Parties: John Terenzini (Applicant) Michael Clulow (Respondent) Representation: J Terenzini (Litigant in person) (Applicant) M Clulow (Litigant in person) (Respondent) File Number(s): 2019/342006 Publication restriction: No Judgment Background to the application 1. In 2016 John Terenzini ('the applicant') engaged a plumber to tend to a sewer pipe at his Waratah property, where he has lived since 1999. The pipe was blocked and sewage overflowed through his toilet. The plumber cleared roots from the pipe. Mr Terenzini incurred some costs for cleaning and drying out the carpet in his dwelling. After a second blockage in 2017, a section of old earthenware sewer pipe near Mr Terenzini's dwelling was removed and replaced with PVC pipe, leaving a section of earthenware pipe connecting to the main sewer pipe in front of his property. The only trees near this part of his property are three Lilly Pillies ('the trees') on the neighbouring property belonging to Michael Clulow ('the respondent'). Mr Terenzini has asked Mr Clulow to remove the trees several times. Although Mr Clulow removed a Camphor Laurel and some saplings, he did not remove the three Lilly Pillies. 2. Mr Terenzini then applied to the Court pursuant to s 7 (Part 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act') seeking orders for the three Lilly Pillies to be removed, along with any other saplings along their common boundary. He has not applied for any compensation. Onsite hearing 1. The onsite hearing allowed observations of the trees, gardens and property damage. Both parties were self-represented; Mrs Clulow also made submissions for the respondent. The parties had each obtained and filed reports from consulting arborists. Due to administrative error, the Court did not have these reports on file, but both parties provided copies. Mr Terenzini had a report from Stephen Williams of Hunter Horticultural Services; and Mr Clulow had a report from Ian McKenzie, of ArborViews, who also attended the hearing. The trees 1. The trees are three Lilly Pillies (Syzygium smithii). According to Mr Clulow, the trees are at least 50 years old, as they were well established when he moved here in 1982. The tree nearest the rear of the properties (T1) is the smallest. The tree nearest the front (T3), the largest of the three, has significant dieback within its crown. Mr Terenzini also wants any small saplings along the common boundary removed. Framework for this decision 1. The trees are on land adjoining the applicant's property (s 7 of the Trees Act). Mr Terenzini has made reasonable effort to persuade Mr Clulow to remove the trees (s 10(1)). At s 10(2) of the Trees Act, I must be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or injury to any person. If that is the case, I must consider a range of matters at s 12 before making any orders. Saplings 1. There is no evidence that young saplings on Mr Clulow's property have caused any damage to Mr Terenzini's property, nor any evidence that they are likely to do so in the near future. Therefore I cannot make any orders with regard to these small trees. The trees have damaged the applicant's property 1. Mr Terenzini claims that roots of the Lilly Pillies have damaged his sewer pipe, a pathway, and his dwelling. He relies on Mr Williams' report and onsite observations. Roots could be seen alongside the path. It was apparent from observations during the hearing that roots have contributed to displacement of the path. That roots were found inside the earthenware pipes, now replaced, is not disputed. I am satisfied that Lilly Pilly roots have contributed to the damage. Other factors have also contributed to the damage, including the age and suitability of both the sewer pipe and the concrete path. Nevertheless, because at least one of the trees has contributed to damage, I can make orders for that tree. On this basis, I would need to know which tree had caused the damage before I could make orders. The trees are likely to cause damage to the applicant's property 1. All three trees are close to the common boundary. Their roots extend into the applicant's property. All three trees are likely to cause further damage to the remaining earthenware section of the sewer pipe and to the path. The likelihood of damage is partly due to the existing condition of this infrastructure, but the likely contribution of trees to further damage satisfies the test at s 10(2) of the Trees Act. On this basis, I can make orders for all three trees. No evidence of trees damaging the dwelling 1. Mr Terenzini showed the Court cracks on internal walls of his dwelling. He argued that the trees have caused foundation movement, leading to the cracking. He pointed out a tree root growing beneath his dwelling. Although I accept that root is from one of the three Lilly Pillies, there has been no investigation or other evidence that demonstrates a link between the tree root and the damage. Other factors that may have caused the damage include: reactive soils, soil moisture changes, leaking pipes and inadequate foundations. I would not make any orders on this element of Mr Terenzini's application. Consideration of matters at s 12 1. The trees are close to the common boundary. Their branches overhang the applicant's property; their roots grow into his property. 2. The trees contribute to public amenity. They provide habitat for birds and other animals. They shade and cool both dwellings and the area between them. Mr Clulow calculated the cooling benefit of the trees to be equivalent to a small air-conditioner. 3. To minimise the likelihood of further damage, Mr Terenzini's path could be replaced with a thicker reinforced path, and the remaining section of earthenware pipe could be replaced with PVC. However carrying out this work would require roots to be severed within the trees' Structural Root Zones. Mr Williams recommended against this because it would increase the risk of windthrow failure for the trees. Although Mr McKenzie was of the opinion that this the risk of tree failure would increase only marginally, I find the increased risk would be unacceptable. Installing a root barrier would also result in structural roots being cut, so is not a viable alternative. The only reasonable way for Mr Terenzini to repair his path and prevent future damage from the trees, is for the trees to be removed. Conclusion 1. One or more of the Clulows' Lilly Pillies has caused damage to Mr Terenzini's path and sewer. All three trees are likely to cause further damage in the near future. The trees have provided benefits for many years, including cooling and shading. Unfortunately, there is no practical solution that would prevent future damage to Mr Terenzini's property while retaining the trees. The trees must be removed. The Court cannot make any orders with regard to the young saplings growing on Mr Clulow's property. Orders 1. As a result of the foregoing, the Court orders: 1. The application is granted. 2. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the three trees that are the subject of this application to no more than one metre above ground level. 3. These works must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 4. The respondent is to give the applicant two days' notice of the works in (2). 5. The applicant is to allow all access required to complete the works in (2) during reasonable hours of the day. ………………………………. 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: 10 March 2020