Amato v Allen (As executors of the Estate of Margaret Allen)

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — two neighbouring trees — damage to property — risk of injury — orders for pruning

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 6, 7, 8, 9, 10, 12

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292

Texts Cited: Australian Standard 4373:2007, Pruning of amenity trees
Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work

Category: Principal judgment

Parties: Victoria Amato (First Applicant)
Victor Amato (Second Applicant)
Mark Allen (As executor of the Estate of Margaret Allen) (First Respondent)
Paul Allen (As executor of the Estate of Margaret Allen) (Second Respondent)

Representation: Counsel:
V Amato (Self-represented) (First Applicant)
V Amato (Self-represented) (Second Applicant)
M Allen (Self-represented) (First Respondent)
P Allen (Self-represented) (Second Respondent)

File Number(s): 2025/280424

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: Two eucalypts grow in the back garden of the Mollymook property belonging to the Estate of Margaret Allen. Her sons, Mark and Paul Allen (the Allens, or the respondents) are the executors of her estate. Victoria and Victor Amato (the Amatos, or the applicants) own and live at a neighbouring property. The Amatos have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for the respondents to remove the two trees, which they say have damaged their property and are dangerous.

2. The onsite hearing allowed the Court to inspect the trees and both properties. The Amatos and the Allens were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The orders that the Amatos seek are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

4. The Court must not make any order unless it is satisfied, first, that the Amatos have made a reasonable effort to reach agreement with the Allens, and second, that the trees have caused, are causing, or are likely in the near future to cause, damage to their property, or are likely to cause injury to a person: s 10 of the Trees Act. Before determining the application, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

5. The Amatos have discussed the trees with the Allens and sent them emails outlining their concerns regarding the trees. I am satisfied that they made a reasonable effort to reach agreement with the respondents and that they gave notice of the application as required by s 8 of the Trees Act.

Damage or injury

6. The test at s 10(2) of the Trees Act must be met for any one tree before orders may be made for that tree.

The southern mahogany

Observations

7. The southern mahogany (Eucalyptus botryoides) is in the Allens’ backyard approximately 2 metres from the parties’ common boundary. It is over 20 metres tall with a stem diameter of approximately 100 cm. Its crown appears healthy. Branches extend past the boundary and above the Amatos’ shed and pergola. Some branches are becoming overextended – long and close to horizontal, with weight concentrated at their ends. Small dead branches are present in the crown. Several metres above ground level, the stem branches into three, most likely as a result of lopping at that height many years ago. The three upper stems are therefore of epicormic origin. Although now well established, the three stems are joined by relatively narrow forks with some included bark. The lower stem and root buttress appear structurally sound. These observations I made during a limited inspection from the ground during the onsite hearing.

Submissions

8. The Amatos pointed out dead branches on the ground and on their pergola roof. They provided a photograph showing a dead branch that pierced their pergola roof and they pointed out the repairs they carried out to the roof with tape.

9. The Amatos are concerned that branches will continue to fall from the southern mahogany, causing further property damage or injuring their family or visitors to their property. They pointed out debris on their concreted outdoor area and on their pergola roof. They submitted that they are required to sweep and clean up regularly.

10. The Allens submitted that they see no reason to remove the tree, and that pruning could deal with any risk.

11. The parties referred to other matters that are not relevant to this decision.

Findings

12. I accept that dead branches from the southern mahogany have damaged the Amatos’ pergola. Similar dead branches, and several overextended branches, are likely to cause damage in the near future. Orders can be made for the southern mahogany.

13. Leaves and twigs that fall from the southern mahogany onto the Amatos’ property might be a nuisance, but the hurdle at s 10(2) of the Trees Act is not one of mere nuisance unless parts of the tree cause damage or are likely to cause damage or injury. Other than branches that have pierced the pergola roof, debris does not inherently cause damage. If damage results from debris remaining on surfaces such as roofing or concrete, and those surfaces deteriorate as a result, that is damage that could be avoided through property maintenance, a reasonable expectation in an urban environment with trees, as per the principle at [20] in Barker v Kyriakides [2007] NSWLEC 292:

“…

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

14. I have considered the matters at s 12 of the Trees Act that are relevant to the southern mahogany. The tree is close to the common boundary with branches over the Amatos’ property. It provides benefits such as shading and cooling, and habitat for fauna.

15. Pruning the tree to the extent required to mitigate the risk of further damage from falling branches would not adversely impact the tree. Despite the narrow forks where the stem divides into three, failure of any of the three upper stems appears unlikely in the foreseeable future. I see no reason to remove the tree. Orders will be made for pruning the southern mahogany. The Amatos have not contributed to damage, nor to the risk of damage or injury, through their own acts or omissions. The Allens have not deliberately caused a nuisance, but can take reasonable actions to prevent their tree causing damage or injury. The Allens will pay for the pruning works.

The blackbutt

Observations

16. The blackbutt (Eucalyptus pilularis) is also about 2 metres from the parties’ common boundary, but is further to the back of the Allens’ property. The blackbutt is also over 20 metres tall with a stem diameter of around 80 cm. It appears to be in good health without major structural defects. Its branches do not overhang the Amatos’ pergola.

Submissions

17. The Amatos submitted that the blackbutt drops debris into their backyard. They are concerned that a branch may fall and hit a family member or visitor in their yard.

Findings

18. The blackbutt has not caused damage to the Amatos’ property. Apart from the occasional shedding of small branches, branches of the blackbutt that overhang the Amatos’ property are unlikely to fall in the foreseeable future. I am not satisfied that the blackbutt is likely to cause damage to their property in the near future or injury to a person. No orders can be made for the blackbutt.

Conclusion

19. Within the framework of the Trees Act, I find it appropriate to make orders only for one of the two neighbouring trees in the Amatos’ application. Orders will be made for the respondents to arrange pruning works for the southern mahogany in their backyard at regular intervals. Pursuant to s 6(3) of the Trees Act, the respondents should not be required to gain Council’s consent to carry out the pruning works ordered here.

Orders

20. The Court orders that:

21. The application to remove the trees is refused.

22. The application is granted only to the extent of the following orders.

23. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the southern mahogany in their back yard within 60 days of the date of these orders, and then every two years thereafter during November while the tree remains, to:

(a) remove all dead branches greater than 25 mm in diameter above the applicants’ property and within 2 metres of the common boundary; (b) reduce or remove overextended branches above the applicants’ property and remove any other hazardous branches above the applicants’ property;

4. The works in Order (3) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
5. On at least 2 days notice from the respondents, the applicants are to allow any access required to their property for completion of the works in Order (3) during reasonable hours of the day.
6. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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