Australia, June 12 -- New South Wales Land and Environment Court issued text of the following judgement on May 13:
1. COMMISSIONER: A large bangalay (Eucalyptus botryoides) grows in the rear courtyard of Patricia Cummings' Balmain property. Branches have fallen onto the roof of the neighbouring dwelling belonging to Margaret Rowe. Ms Rowe has asked Ms Cummings to remove other branches overhanging her property. In 2024, Ms Cummings engaged an arborist to remove some deadwood and other branches, less than 10% of the tree's crown as can be done without council consent, but not the branches that concern Ms Rowe. Ms Cummings wants to remove the tree, but is of the opinion that Inner West Council (Council) would not permit her to remove it. She has not applied for Council's consent. Ms Rowe has applied to the Court seeking orders for Ms Cummings to remove branches above Ms Rowe's property and for Ms Cummings to pay Ms Rowe $1,100, being the insurance excess incurred for roof repairs after a branch fell onto her roof.
2. The final hearing took place onsite, allowing the Court to inspect the tree and the surrounding environment. Ms Rowe was self-represented; Ms Cummings was represented by William Mobbs as her agent but also made her own submissions. I rely on my own arboricultural expertise and experience in making this decision.
Framework for this decision
3. Ms Rowe has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders she seeks are orders the Court can make at s 9 of the Trees Act.
4. Relevant issues to be determined in these proceedings are:
* Has the applicant, Ms Rowe, made a reasonable effort to reach agreement with the respondent, Ms Cummings, and given the required notice of the application: s 10(1)(a) of the Trees Act?
* Can the Court be satisfied that the tree 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)?
* If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?
The tree
5. The bangalay is over 20 metres tall with a broad crown that spreads over Ms Cummings' courtyard and dwelling and above adjoining properties on either side. Its stem is more than a metre in diameter. The tree appears fairly healthy, with some deadwood throughout its crown as might be expected for a tree of this size and age. Some branches in its outer crown appear overextended, including long branches overhanging Ms Rowe's property. During my assessment of the tree, limited to ground-based observations, I saw no other significant structural defects. Structural roots appear undisturbed and undamaged. Failure of the tree's root plate is unlikely.
Reasonable effort to reach agreement
6. Ms Rowe asked Ms Cummings to remove branches over her property. It was clear from Ms Cummings' responses that she would not carry out further pruning works, partly due to her desire to remove the tree. I am satisfied that Ms Rowe has made a reasonable effort to reach agreement with Ms Cummings and that the timeframe set down by the Court has allowed for the required notice of the application.
Damage or injury
7. Branches have fallen from the tree onto Ms Rowe's roof, causing significant damage. One branch pierced the roof tiles and ceiling. This is not disputed. Branches that remain above Ms Rowe's dwelling are overextended and likely to fall in the near future, or within 12 months: see Yang v Scerri [2007] NSWLEC 592 at [14]. I am satisfied that the tree has caused, and is likely in the near future to cause, damage to the applicant's property.
8. Other overextended branches to the southeast, overhanging another property and a laneway, are likely to fall in the foreseeable future and would injure anyone beneath. I am satisfied that the tree is likely to cause injury.
*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196cd1235e59d32bdf8d750f)
Disclaimer: Curated by HT Syndication.
