Badolato v Ware

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — risk of damage to property — orders for tree pruning and removal – orders for compensation – orders for further tree testing.

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

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292

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

Category: Principal judgment

Parties: Philip Badolato (Applicant)
Shannon Robert Ware (First Respondent)
Tania Lee Ware (Second Respondent)

Representation: Counsel:
P Badolato (Self-represented) (Applicant)
S Ware (Self-represented) (First Respondent)
T Ware (Self-represented) (Second Respondent)

File Number(s): 2025/175182

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER**:** Philip and Bianca Badolato (the Badolatos; Philip is the applicant) and Tania and Shannon Ware (the Wares; the respondents) are neighbours in Oatley, in southern Sydney. Several large trees stand on the Wares’ property near their side boundary, the common boundary shared by the parties. Mr Badolato has applied to the Court seeking orders for the Wares to prune one tree and to remove five trees and to pay compensation for property damage caused by a tree.

2. The onsite hearing allowed the Court to inspect the trees and relevant parts of both properties. The parties were self-represented at the onsite hearing. In evidence were two reports from arborists: one from Walter Chan, of Arbor Express, engaged by Mr Badolato (Mr Chan’s report); and one from Tarek Hussein, of The Tree Guardian, for the Wares (Mr Hussein’s report). Both arborists provided oral evidence during the hearing. I also rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Mr Badolato has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act). The orders he seeks 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. Relevant issues to be determined in these proceedings are:

5. Whether Mr Badolato has made a reasonable effort to reach agreement with the Wares and given the required notice of the application: s 10(1) of the Trees Act.

6. Whether the Court can be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the Wares’ property, or are likely to cause injury to any person: s 10(2).

7. If so, how consideration of relevant matters at s 12 of the Trees Act should influence any orders to be made.

Reasonable effort to reach agreement

5. Mr Badolato submitted that he spoke directly with the Wares to notify them of concerns regarding the trees; he sent formal correspondence through a solicitor; he sought assistance from Georges River Council (Council); and he offered mediation through the Community Justice Centres. He said he received no response to written communication and the offer of mediation was not accepted.

6. The Wares submitted that Mr Badolato made no reasonable or genuine effort to reach agreement with them. They said that Mr Badolato was only ever interested in expressing his own opinion and would not listen to their views. They argued that Mr Chan’s report, shared with them by Mr Badolato, was inaccurate. They claimed that Mr Badolato’s tone was angry and hostile, that the legal letter was intimidatory. They saw that no agreement was likely in these circumstances, so mediation would not resolve the dispute.

7. The nature of the relationship between the Badolatos and the Wares, characterised by a level of animosity and a lack of trust, is not unusual in neighbourly disputes. Although the Wares see Mr Badolato’s attempts to reach an outcome as only self-interested, Mr Badolato had genuine concerns about the trees after one of them caused damage during a storm. He relied on Mr Chan’s report, which included recommendations consistent with the orders he now seeks. He has taken reasonable steps to reach an outcome.

8. I am satisfied that Mr Badolato has made a reasonable effort to reach agreement with the Wares and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

9. Five native trees and one exotic tree are the subject of this application. The arborists used inconsistent numbering systems in their reports. In this judgment, I rely on the tree numbering used by Mr Badolato in Form H of his application (in Exhibit A), generally following the trees’ positions from the back of the properties to the front. During the hearing, Mr Chan’s opinions on several trees changed from those in his report to such an extent that I give his report very little weight in the decision-making process. Mr Hussein’s report is not without its errors, but I rely on his measurements and general description of the trees. I consider each tree below, firstly in relation to s 10(2) of the Trees Act and then any matters at s 12 that are specific to each tree.

Tree 1: Eucalyptus tereticornis (forest red gum)

Evidence and submissions

10. Tree 1 is near the rear boundary of the Wares’ property. Mr Hussein (Tree 5 in his report) measured this forest red gum as 20 metres tall with a crown spread of 20 x 22 metres and a stem diameter at 1.4 metres above ground level (Diameter at Breast Height, or DBH) of 850 mm. He classified the tree to have high landscape significance and high retention value.

11. Mr Hussein described Tree 1 as having good health and good/fair structure and form, with a significant lean to the northwest, towards the applicant’s property. Using the International Society of Arboriculture’s Tree Risk Assessment Qualification (TRAQ) methodology, he showed the tree had an overall low risk rating (at Appendix D of his report in Exhibit 1). However, on p 42 of his report he wrote: “The TRAQ methodology outlines that the failure mode for having the greatest risk is reported as being the overall risk rating for a tree.” And in the table for this tree on p 43 of his report, he found that the tree’s stems, or ‘leaders’, posed a moderate risk of causing damage to property, based on their attachment points at their main junction and their potential for ‘end-weight failure’. Mr Hussein recommended pruning to remove deadwood and a suspended broken branch (hanger). He did not recommend any works to address the only moderate risks he identified within his report.

12. At the onsite hearing, Mr Hussein repeated his opinion regarding appropriate recommendations for Tree 1. Mr Chan thought that long branches extending over the Badolatos’ property should be reduced back to the boundary line, and deadwood should be removed from the tree.

13. Although Mr Badolato had applied for the tree’s removal, he said this was based on Mr Chan’s written recommendations, as were the orders he sought for removing several other trees. Mr Badolato submitted that he would accept the arborists’ professional advice on the potential for pruning works to manage the tree’s risk.

14. Ms Ware emphasised that this tree is one of the remnant trees on the ridgeline in a Foreshore Scenic Protection Area mapped by Council.

Findings

15. Mr Hussein’s risk assessment accurately identifies the failure potential for the long branches that arise from the northern leader and extend well past the common boundary and above the Badolatos’ property. Failure of branches, or the entire leader, would cause damage to their dwelling and may cause injury to someone on their property. The Court can make orders for Tree 1: s 10(2) of the Trees Act.

16. The risk is significant enough to warrant works for its mitigation, so Mr Hussein’s lack of recommendations for this seems a significant oversight. Mr Chan’s verbal recommendations would address the issue but are perhaps excessive – there should be no need to prune back to the boundary line. Pruning to reduce overextended branches would not adversely affect the tree nor would it reduce the tree’s benefits to any significant degree, these being relevant considerations at s 12 of the Trees Act. Observations from the ground of high tree branches are inherently limited – an arborist carrying out pruning works may find features that influence the extent of pruning. I will make orders for pruning to reduce branches and removed deadwood, with final pruning points to be determined by the arborist carrying out the works.

Tree 2: Eucalyptus tereticornis (forest red gum)

Evidence and submissions

17. Tree 2 is nearer the common boundary between the properties. Mr Hussein (Tree 4 in his report) measured this forest red gum as 17 metres tall with a crown spread of 14 x 13 metres and a DBH of 690 mm. He classified the tree to have high landscape significance and a high retention value.

18. Mr Hussein described Tree 2 as having good health and good structure and form, noting it was mildly suppressed by Tree 1. In his tree risk schedule (at Appendix D of his report), he showed the tree had an overall low risk rating, having found that failure of any significant part of the tree in the next five years is unlikely. He recommended pruning to remove deadwood from the tree.

19. Walking back from his written recommendation to remove this tree, Mr Chan suggested at the hearing that any risk could be managed by pruning Tree 2 to reduce long branches and remove deadwood above the Badolatos’ property.

20. Mr Badolato submitted that branches have fallen onto his property from this tree. In late 2024, one branch damaged the VHF antenna on his roof. He provided a copy of a quote for $987.80 to replace the antenna. His application seeks compensation for this amount. His application also includes a photograph showing a dead branch lying on the ground next to a rod from the broken antenna. He explained that he could not provide any further evidence than this and, as the incident happened overnight and was discovered the following morning, it would be unreasonable to expect him to do so.

21. Mr Badolato also provided photographs of leaves and debris on his roof, in roof valleys and gutters. He provided a quote to repair water damage to his ceiling, a result of gutters being blocked by debris. The quote for $1,500 also includes painting of damaged parts of the Badolatos’ garage, or carport, following damaged from a fallen branch.

22. The Wares submitted that the Badolatos’ antenna was old, perhaps of a similar age to their own antenna that stopped working some time ago. They said their trees had no dead branches above the antenna, and there was no evidence to identify the cause of damage to the antenna. The Wares argued that debris from the tree might be a nuisance, but is not a reason to remove the tree. They said the tree was pruned three years ago.

Findings

23. Dead branches are likely to fall from Tree 2 and cause damage to the Badolatos’ roof in the near future. The Court can therefore make orders for Tree 2. Mr Hussein identified this risk during the hearing and stated that his written risk assessment did not include deadwood. Considering the extent of live branches above the Badolatos’ dwelling, some of which are also likely to fall in the near future, some reduction pruning would reduce the risk of damage from live branches falling onto the dwelling, as Mr Chan suggested during the hearing. As with Tree 1, final pruning points should be determined by the arborist carrying out the works. Pruning the tree in this way would not adversely impact the tree nor significantly reduce its benefits.

24. On the available evidence, I cannot be satisfied, first, that Tree 2 damaged the Badolato’s antenna, and second, that the Wares could have reasonably prevented this. The dead branch in Mr Badolato’s photograph is small enough that it may have died between regular pruning events. No compensation will be ordered for the antenna.

Tree 3: Eucalyptus tereticornis (forest red gum)

Evidence and submissions

25. Tree 3 is near the common boundary, between the two dwellings. The Wares have Council’s permission to remove this tree as part of a Development Consent for building works. They said this was a contingency only, and they will attempt to keep the tree. Mr Hussein did not assess this tree in his 2025 report, but it was included as Tree 9 in his 2023 impacts assessment report for the Wares’ Development Application.

26. This large, mature forest red gum spreads over both dwellings. Approximately 3 metres above ground the lower stem contains a cavity, as noted in Mr Chan’s report (in Exhibit A) at p 4 and Photo 22, and in the letter from Shaw Reynolds Lawyers of 12 March 2025 (in Exhibit B).

27. Mr Chan observed some small branches touching the Badolatos’ dwelling. He thought the risk of larger branches falling from the tree and causing damage was moderate. Pruning was unsuitable, so he recommended removal of the tree.

28. Mr Hussein thought that any risk arising from Tree 3 could be managed by removing deadwood and pruning small branches near the Badolatos’ dwelling back to the stem.

29. Mr Badolato submitted that the tree should be removed due to its proximity to, and overhang of, his dwelling.

Findings

30. Small branches touching the Badolatos’ dwelling and dead branches throughout Tree 3’s crown are likely to cause damage to the Badolatos’ property in the near future. The Court can make orders for Tree 3.

31. The form of the tree’s lower stem, and reaction growth near the cavity, indicate that the tree may have been damaged there when it was young. The stem’s structural integrity cannot be determined through visual assessment alone, so testing of the stem wood is required if Tree 3 is retained.

32. Orders will be made to prune Tree 3 and to test its stem should the tree not be removed as part of the Wares’ development consent.

Tree 4: Angophora costata (Sydney red gum)

Evidence and submissions

33. Tree 4 is in the Wares’ front setback. Mr Hussein (Tree 3 in his report) measured this Sydney red gum as 13 metres tall with a crown spread of 12 x 12 metres and a DBH of 430 mm. He classified the tree to have high landscape significance and a high retention value.

34. Mr Hussein described Tree 4 as having good health and structure and good/fair form, with an asymmetrical canopy lean to the north over the applicant’s property. His risk assessment for this tree includes errors in applying the TRAQ methodology: for instance, reporting a moderate risk of damage to powerlines despite finding branch failure was improbable. Although he found a moderate risk, he recommended no action for this tree.

35. Despite Mr Chan’s written recommendation of tree removal, during the hearing he recommended crown-reduction pruning and annual crown maintenance including deadwood removal.

36. Mr Badolato submitted that the Court should follow the arborists’ advice.

Findings

37. Tree 4 leans over the Badolatos’ property, but no major defects were identified in its stem or scaffold branches. Deadwood and overextended branches are likely to fall onto the Badolatos’ property in the near future, causing minor damage to property. The Court can therefore make orders for Tree 4. Crown-reduction pruning and crown maintenance would mitigate the risk without adversely impacting the tree.

Tree 5: Angophora costata (Sydney red gum)

Evidence and submissions

38. Tree 5 is in the Wares’ front setback. Mr Hussein (Tree 1 in his report) measured this Sydney red gum as 15 metres tall with a crown spread of 10 x 8 metres and a DBH of 360 mm. He classified the tree to have medium landscape significance and medium retention value.

39. Mr Hussein described Tree 5 as having good health, fair structure and fair/poor form, with damaged branches resulting from a rubbing branch and from the failure of part of Tree 6. He thought damage to branches was superficial. He found the tree posed a moderate risk of damage to powerlines but recommended no action for this tree.

40. Mr Chan noted that the tree leans entirely over the Badolatos’ property. Its defects are more than superficial – he pointed out cracking in the bark and a lack of response growth around wounds. He thought this tree posed the highest risk of all the trees to the Badolatos.

41. Ms Ware acknowledged the importance of the tree’s canopy providing a pathway for native fauna.

Findings

42. The growth form of Tree 5 is such that the risk it poses cannot be managed by pruning. Overshadowed by other trees, Tree 5 has grown away from those trees and over the Badolatos’ property. Overextended branches, with all their foliage weight at their ends, are likely to break and fall onto the Badolatos’ property and cause minor damage in the near future. The Court can therefore make orders for Tree 5. Removing sufficient mass to mitigate the risk would make the tree unviable. There is no reasonable alternative to removing this tree, despite any potential benefits it may provide for habitat movement. I note that no evidence was provided of the tree’s contribution to a wildlife corridor.

Tree 6: Liquidambar styraciflua (sweet gum)

Evidence and submissions

43. Tree 6 is also in the Wares’ front setback. Mr Hussein (Tree 2 in his report) measured this sweet gum as 13 metres tall with a crown spread of 9 x 10 metres and a DBH of 530 mm. He classified the tree to have medium landscape significance and medium retention value.

44. Mr Hussein described Tree 6 as having good health, good/fair structure and fair form. Recent stem failure resulted in approximately 30% crown loss, but the tree remains viable. A branch from Tree 6 rubs against Tree 5, causing a wound on Tree 5. Mr Hussein recommended removal of this rubbing branch, but found the tree posed a low risk of causing further damage to property or of injuring anyone.

45. The sweet gum’s upper stem broke during a storm, causing damage to the Badolatos’ property and to other trees, notably Tree 5. Mr Chan stated that the stem below the breakage had an internal cavity, but then conceded that a photograph showed the stem wood was merely discoloured but solid. He questioned the structural integrity of the stem and suggested it should be tested further. He recommended removing the tree’s crossing branch.

46. Mr Ware submitted that Tree 6 provides positive amenity to the respondents’ property.

Findings

47. Tree 6 caused damage to the Badolatos’ property, so the Court can make orders for this tree. The branch that rubbed against Tree 5 is damaged and should be removed, along with any other branches identified as hazardous by the arborist carrying out the works. This would not adversely impact the tree.

Consideration of other s 12 matters

48. Orders that would mitigate the risk for each tree are outlined above. I have considered the matters at s 12 of the Trees Act, discussing those most relevant below.

49. The need for orders is partly due to the trees’ proximity to, and overhang of, the Badolatos’ dwelling and other commonly used parts of their property.

50. The works outlined above would ordinarily require consent from Council. The Wares already have Council’s consent to remove Tree 3. Pursuant to s 6(3) of the Trees Act, the Wares will not require Council’s consent to carry out tree works ordered below.

51. Mr Badolato’s application seeks compensation totalling $2,905.80. The Wares submitted that they should not have to pay any compensation given that they paid $416 to clean up the fallen parts of the sweet gum, Tree 6.

52. The Badolatos raised their issues about the trees with the Wares, including their concerns regarding the sweet gum, Tree 6. The Wares took no action, and Tree 6 subsequently failed at a defect identified by the Badolatos, causing damage to their property. The Wares submitted that this resulted from a severe storm event. However, had they taken timely action, the damage may well have been avoided. It is therefore reasonable that the Wares compensate the Badolatos for damage to their carport: $418 for structural repairs and $500 for painting. The painting invoice includes painting internal parts of the Badolatos’ dwelling following water damage, which is not to be compensated (see below), so I have estimated that a third of the $1,500 invoice was for the carport painting.

53. The Badolatos dwelling suffered some internal water damage after when their gutters and downpipes were blocked by leaves, twigs and debris, which they submitted fell from the Wares’ trees, which I accept. The damage could have been avoided by clearing gutters and downpipes, which the Court regards as reasonable property maintenance as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]:

“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.”

54. Therefore, orders will not be made for compensation for water damage, nor for damage to the Badolatos’ television antenna (see [24] above).

55. The Wares submitted that costs for pruning their trees should be apportioned based on the proportion of deadwood over each property: 75% paid by the Wares and 25% paid by the Badolatos. Because the Badolatos have not contributed to the risk through their own actions, the cost of tree works will sit, as they usually do, with the respondents.

56. Council would likely include a condition for replacement planting when permitting tree removal, so an order for planting to replace Tree 5 will be made here.

Orders

57. The Court orders:

58. The application is granted to the extent of the following orders (trees numbered as per the application Form H (in Exhibit A).

59. Within 14 days of the date of these orders, the respondents are to pay the applicant compensation for damage of $918.

60. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to carry out the following works within 30 days of the date of these orders:

(a) Prune Trees 1, 2, 4 and 6 to

(i) remove dead branches greater than 25 mm in diameter; (ii) reduce overextended branches above the applicant’s property by pruning them back to suitable lateral branches or to their branch collars, removing no more than 20% of live crown mass; (iii) remove broken branches; and (iv) remove any other branches identified as hazardous during the works.

(b) Remove Tree 5.

4. Within 90 days of the date of these orders, the respondents are to plant, at least one metre from any boundary, a native tree that will reach a height of at least 8 metres at maturity.
5. If Tree 3 is not removed (as permitted by Georges River Council’s Development Consent for DA2022/0605) within 30 days of the date of these orders, the respondents are to:

(a) Engage a suitably insured and qualified (minimum AQF level 3) arborist to prune Tree 3 within 60 days of the date of these orders to

(i) remove dead branches over the applicant’s property; (ii) provide at least 1 metre clearance between the applicant’s property and all tree branches; and (iii) remove any other branches identified as hazardous during the works.

(b) Engage a suitably qualified arborist (minimum AQF level 5) within 60 days of the date of these orders to carry out an assessment of structural integrity at the stem cavity using sonic tomography, resistance drilling, or another suitable method, and to provide a written report with recommendations to mitigate identified risks with timeframes specified for any works. (c) Provide a copy of the report from Order 5(b) to the applicant within 7 days of obtaining the report. (d) Engage a suitably qualified arborist to carry out all works recommended in the report from Order 5(b) within the specified timeframes.

6. Works in Orders (3) and (5) 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’.
7. The respondents are to give the applicant 7 days notice of all works in Orders (3) and (5).
8. The applicant is to allow any access required for completion of the works in Orders (3) and (5) during reasonable hours of the day.
9. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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