Coleman v Tripodi

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree damaging boundary fence – whether tree removal is required – orders for tree pruning and fencing works

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

Cases Cited: Yang v Scerri [2007] NSWLEC 592

Category: Principal judgment

Parties: Bernadette Coleman (Applicant)
Liliana Tripodi (First Respondent)
Dimitrios Terzis (Second Respondent)

Representation: Counsel:
B Coleman (Self-represented) (Applicant)
L Tripodi (Self-represented) (First Respondent)
D Terzis (Self-represented) (Second Respondent)

File Number(s): 2025/49988

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** A mature gum tree on the Alfords Point property belonging to Liliana Tripodi and Dimitrios Terzis (the respondents) grows against the common boundary fence shared with their neighbour Bernadette Coleman (the applicant). The trees’ stem is pushing against panels of the Colourbond fence and its roots are lifting the fence. Ms Coleman wants the tree removed to prevent further damage and she wants the fence repaired. Ms Tripodi and Mr Terzis want to fix the fence without removing the tree. Ms Coleman thinks the tree’s roots may have also damaged some concrete steps closer to her dwelling. She has applied to the Court seeking orders for removal of the tree and its roots at the respondents’ expense, property repairs, and the costs of making the application.

2. The final hearing took place onsite, allowing the Court to inspect the tree and the surrounding environment. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Ms Coleman 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, however she seeks an order for costs of the application, which Commissioners of the Court do not have the power to order. A Notice of Motion to be heard by the Registrar or a Judge of the Court would be required for a costs order to be made.

4. Relevant issues to be determined in these proceedings are:

5. Has the applicant made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 10(1)(a) of the Trees Act?

6. 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)?

7. 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. This mature gum tree, a Eucalyptus piperita (Sydney peppermint), is 15–20 metres tall with a crown spread of approximately 15 metres. A central stem is dead, with dead branches above both properties. A branch in the upper crown above the respondents’ property is also dead. Other parts of the tree are healthy, without any 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 Coleman has discussed the issues with the respondents but failed to reach the outcome she desires. I am satisfied that she has made a reasonable effort to reach agreement with the respondents and that the timeframe set down by the Court has allowed for the required notice of the application.

Damage or injury

7. The tree’s stem and root crown grow against and beneath the fence, pushing it both laterally into Ms Coleman’s property and upwards. Lateral pressure has deformed two or three fence panels, while upward pressure has displaced and separated several panels. In total, five or six fence panels are affected. The tree is the only cause of this damage. The respondents do not dispute this.

8. Ms Coleman’s concrete steps are some 12 metres from the tree. Cracking of the concrete aligns with the oleander that is next to the steps. The oleander seems most likely to be the cause of this damage. Ms Coleman has not undertaken any investigations to show otherwise. No eucalypt roots were observed near the steps.

9. Dead branches are likely to fall from the tree in the near future, or within 12 months: see Yang v Scerri [2007] NSWLEC 592 at [14]. Branches on the dead central stem may fall onto Ms Coleman’s land. Other dead branches are more likely to fall onto the respondents land – they submitted to the Court that this does not worry them. To mitigate any risk to people and property on Ms Coleman’s land, the central dead stem and its branches could be removed.

Consideration of relevant matters

10. The tree has damaged the applicant’s property, allowing the Court to make orders: s 10(2)(a) of the Trees Act. Before making any orders, the Court must consider the matters at s 12. I discuss below the s 12 matters that are relevant to my decision.

Location of the tree

11. The tree is close to the common boundary and is pushing against the fence. Its roots grow into the applicant’s property. Some branches overhang her property.

Consent requirements

12. Removing the tree would require consent from Sutherland Shire Council (Council).

The tree’s benefits

13. The tree contributes significantly to local amenity, to the respondents’ landscape, and to the local environment. Its crown provides shading, cooling and habitat. It is a naturally occurring species in the locality that contributes to the local ecosystem. Retention of the tree should be preferred over removal if this is reasonably possible.

Impacts of pruning

14. Pruning the tree to remove its dead central stem and branches (see Figure 1) would sufficiently reduce the risk of branches causing damage or injury. This would not adversely affect the tree.

Figure 1. Dead central leader indicated by arrows.

Fence

15. The fence could be repaired and realigned, or panels replaced, in a way that would allow tree retention. This will require some clearance between the fence and the tree’s roots and stem to allow for future growth without allowing a dog to pass through. For instance, 100 mm clearance should meet these criteria.

Costs of the works

16. Ms Coleman has not contributed to the issues through any acts or omissions. As is usual in such matters, the tree’s owners will bear the costs of the works ordered below.

Consent not required to carry out orders

17. Council consent is not required to carry out the tree works ordered below: s 6(3) of the Trees Act. The respondents may require Council consent to carry out any pruning beyond that ordered below.

Orders

18. The Court orders:

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

20. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree within 60 days of the date of these orders to remove the dead central stem and its branches (photo at [14] in judgment).

21. The works in Order (2) must be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

22. The respondents are to give the applicant 7 days’ notice of the works in Order (2).

23. The applicant is to allow any access required for completion of the works in Order (2) during reasonable hours of the day.

24. Within 90 days of the date of these orders, the respondents are to engage a suitably experienced fencing contractor to repair or replace fencing panels so that the dividing fence is fit for purpose, matches as closely as possible the current fence in colour and style, is straight and sturdy and aligned along the boundary, with at least 100 mm clearance between all parts of the fence and all parts of the tree but with no gap large enough for a dog to pass through. The tree is not to be damaged in any way during these fencing works.

25. The respondents are to give the applicant 7 days’ notice of the works in Order (6).

26. The applicant is to allow all access required for completion of the works in Order (6) during reasonable hours of the day.

27. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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