Green v The Owners – Strata Plan 16846

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – risk of damage – orders for regular pruning

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

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Green v The Owners – Strata Plan No 16846 [2019] NSWLEC 1500
Hinde v Anderson [2009] NSWLEC 1148

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

Category: Principal judgment

Parties: Belinda Jean Green (First Applicant)
Jamie Adam Green (Second Applicant)
The Owners – Strata Plan 16846 (Respondent)

Representation: Counsel:
B Green (Self-represented) (First Applicant)
J Green (Self-represented) (Second Applicant)
M Sardelich (Agent) (Respondent)

File Number(s): 2025/107411

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Belinda and Jamie Green have applied to the Court for orders relating to a neighbouring tree belonging to The Owners – Strata Plan 16846. They seek the tree’s removal or, in the alternative, orders for regular maintenance of the tree, with the respondents to bear the costs of all works.

2. The Greens made a similar application in 2019. I gave orders in those proceedings for the respondents to prune the tree: see Green v The Owners – Strata Plan No 16846 [2019] NSWLEC 1500. The respondents carried out those orders.

3. The hearing took place onsite, allowing me to observe the tree, the applicants’ dwelling and both properties. The Greens were self-represented; Mr Sardelich represented the respondents as agent. I rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties.

Framework for this decision

4. The Greens applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The tree is on land adjoining their land. The orders they seek are orders the Court can make at s 9 of the Trees Act.

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

6. Whether the applicants have 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.

7. Whether the Court can 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).

8. How consideration of the relevant matters at s 12 of the Trees Act should influence any orders to be made.

Reasonable effort to reach agreement

6. The Greens described the requests they have made to the respondents. They received no response, or were told to prune the tree themselves. This would require further cooperation with the respondents, which was unforthcoming. I am satisfied that the Greens 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.

Whether the tree is likely to cause damage or injury

7. Many features of the situation described in the 2019 judgment have changed little since then, so for brevity, I will not describe them again. An applicant may not repeatedly apply to the Court if circumstances do not change: Hinde v Anderson [2009] NSWLEC 1148. However, the circumstances have changed sufficiently to enable this new application.

8. After the 2019 pruning occurred, as ordered by the Court, branches were clear of the Greens’ dwelling and deadwood that might damage their roof had been removed from the tree’s crown above their property. Since then, some lower branches have regrown to now be contacting the Greens’ dwelling, and deadwood has developed again in the tree’s crown above their property. The abrasive action of even small branches rubbing against the dwelling wall is likely to cause cosmetic damage, and where branches rub against the roof they may damage the roofing material. Deadwood falling onto the roof is likely to cause damage, minor though that may be, such as denting the roofing material. Damage is likely to occur within the next 12 months, or ‘the near future’. This enlivens the Court’s power to make orders at s 10(2) of the Trees Act.

Consideration of relevant matters

9. I have considered the matters at s 12 of the Trees Act. Sometimes when making orders, to avoid what may be perceived as the onus of complying with orders for ongoing tree maintenance at regular intervals, the Court has made orders for one-off pruning only, in the hope that the respondents will realise the need to maintain their tree, get the gist of what needs to be done, and undertake regular pruning without the need for Court orders to avoid an ongoing dispute. This has not occurred here.

10. The Greens have raised the matter with the respondents’ strata manager on several occasions. They submitted that, mostly, they receive no response, but once were told they should undertake pruning themselves. After hearing submissions from the Greens and from Mr Sardelich for the respondents, I accept that the Greens have found no alternative other than applying again to the Court. The Greens’ expectation that the respondents do more to maintain their tree might seem unreasonable to the respondents if they see no issue with the tree. However, having observed the issues, such maintenance seems reasonable to me. The Greens’ expectation that they at least get a response to their requests, so that they might discuss the issue with their neighbours, seems entirely reasonable.

11. For these reasons, there is now justification for the Court to make orders for regular pruning of the tree. It is growing and changing slowly, so maintenance at intervals of three years seems reasonable.

12. Roots have not damaged the Greens’ dwelling, and nothing demonstrates that they are likely to do so in the near future.

13. The issue of smaller debris falling from the tree onto the Greens’ roof, courtyard, caravan and cars was dealt with in the previous decision. The principle at [20] of Barker v Kyriakides [2007] NSWLEC 292 still reasonably applies here, so no orders will be made on that element of the application.

14. Other submissions concerning a separate tree removed earlier from the respondents’ property are not relevant to this decision.

15. Due to s 6(3) of the Trees Act, council consent is not required to carry out the pruning ordered below. A koala was once seen in the tree. Pruning works must not be carried out while wildlife is present in the tree.

Orders

16. The Court orders:

17. The application is granted to the extent of the following orders.

18. The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the tree in August every three years, beginning in August 2025, as follows:

(a) Remove any deadwood greater than 25 mm in diameter over the applicants’ property. (b) Remove branches that are less than 200 mm in diameter and are directly within one metre of the applicants’ dwelling’s wall or roof by pruning them back to their branch collars or by reducing them to a suitable lateral branch as appropriate.

3. The works in Order (2) must be done in accordance with AS 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
4. The respondents are to give the applicants 7 days’ notice of each occurrence of the works in Order (2).
5. The applicants are to allow all access required for completion of each occurrence of the works in Order (2) 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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