Homersham v Crawford

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

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 6, 7, 8, 9, 10, 12
Inner West Tree Management Development Control Plan 2023, cl 3

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: John Homersham (Applicant)
Jane Crawford (First Respondent)
Sam Crawford (Second Respondent)

Representation: Counsel:
J Homersham (Self-represented) (Applicant)
J Crawford (Self-represented) (First Respondent)
No appearance (Second Respondent)

File Number(s): 2025/298809

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 lemon-scented gum (Corymbia citriodora) (the tree) grows in the small front garden of the Stanmore property belonging to Jane Crawford and Sam Crawford (the respondents). John Homersham (the applicant) and his wife own and live at the neighbouring property. Periodically, limbs have fallen from the tree and broken tiles on Mr Homershams’ roof. Ms Crawford intended to apply to Inner West Council (Council) to remove the tree, but Mr Crawford would not sign the application form. Mr Homersham has 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 tree and to compensate him for property damage and other costs.

2. The onsite hearing allowed the Court to inspect the tree and both properties. Mr Homersham was self-represented. Ms Crawford represented herself but not Mr Crawford, who did not appear. Mr Homersham had served a copy of the application on Mr Crawford, so the hearing proceeded in his absence. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The orders that Mr Homersham 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. Commissioners of the Court do not have the power to order costs, such as the cost of making the application.

4. The Court must not make any order unless it is satisfied, first, that Mr Homersham has made a reasonable effort to reach agreement with the respondents, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to his property or is 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. Mr Homersham has discussed the tree with the Crawfords. Ms Crawford agreed to apply to Council to remove the tree, but Mr Crawford’s refusal to sign the application form prevented her doing so. I am satisfied that Mr Homersham made a reasonable effort to reach agreement with the respondents and that he gave notice of the application as required by s 8 of the Trees Act.

The tree has damaged, and is likely to damage, the applicant’s property

6. The lemon-scented gum appears healthy with typical form for the species. The tree is approximately 14 metres tall with a stem diameter of around 45 centimetres. It is not disputed, and I accept, that branches have fallen from the tree and damaged tiles on Mr Homersham’s roof. I observed overextended branches and small dead branches that overhang his dwelling and are likely to fall in the foreseeable future.

7. The tree has caused, and is likely to cause, damage to Mr Homersham’s property. Orders can be made to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree: s 9 of the Trees Act.

Consideration of relevant matters

8. Having considered matters at s 12 of the Trees Act, I find the following matters are relevant to this decision.

9. The tree is close to the common boundary shared by the parties. Branches overhanging Mr Homersham’s dwelling are likely to fall in the foreseeable future.

10. The Crawfords have periodically applied to Council to prune the tree. They have pruned it every few years, removing branches over both their dwelling and Mr Homersham’s.

11. The Crawfords have not applied to Council to remove the tree. The tree does not appear to meet any of the exemptions at cl 3 of the Inner West Tree Management Development Control Plan 2023.

12. The tree provides benefits including shading and cooling. It contributes to the streetscape and to public amenity.

13. Mr Homersham is concerned that branches will continue to fall onto his dwelling. He has incurred an insurance excess several times over the last few years: $300 to 500 at each incident. His insurer has otherwise covered the cost of repairs.

14. Mr Homersham is concerned that the tree’s roots will damage his dwelling, as the tree is within 2 metres of the dwelling’s front corner. I saw no signs of property damage from roots, and nothing to suggest this is likely in the near future.

15. Ms Crawford is concerned that the tree might fall onto the street, damaging cars or other property or injuring somebody. I saw no significant structural defects in the tree. The root crown and stem appear sound. Total tree failure is unlikely.

16. Pruning to reduce the risk of further damage to Mr Homersham’s dwelling would be relatively minor and would have no adverse impacts on the tree. Orders will be made to prune the tree every two years. Branches close to the Crawfords’ dwelling are likely to cause minor damage to their property, so orders will include removal of those branches. The respondents will not be required to obtain consent for the pruning works: s 6(3) of the Trees Act. Should they wish to remove the tree, they can apply for Council consent to do so.

17. At Question 14 of his application, Mr Homersham sought compensation for damage, equivalent to the insurance excess, and for the costs of making his application to the Court. The Crawfords have maintained the tree regularly, so have not been negligent, and will incur the costs of ongoing maintenance unless the tree is removed. No orders will be made for compensation. Commissioners of the Court do not have the power to make an order as to costs.

Orders

18. The Court orders that:

19. The application to remove the tree is refused.

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

21. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the tree within 30 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; (b) reduce overextended branches and remove any other hazardous branches above the applicant’s property; and (c) remove any branches within one metre of the respondents’ roof.

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 applicant is to allow any access required to his 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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