Hunter v Power

File Number(s): 2025/404770

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: In Stanmore, in Sydney’s inner west, a mature yellow box (Eucalyptus melliodora) (the tree) grows in Louise Power’s back yard. Mary Hunter lives to Ms Power’s East, their properties separated by Stafford Lane, a narrow ‘back laneway’ typical of the inner residential suburbs. Ms Hunter has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking an order for the tree’s removal or, failing that, an order for all branches to be pruned back to Ms Power’s property boundary or, failing that, an order for the removal of all branches above Ms Hunter’s property. Ms Hunter’s application also sought an order for her arborist to have access to Ms Power’s property to assess the tree, but her arborist has accessed the property since the application was filed.

2. In addition to her application forms (Exhibit A), Ms Hunter provided ‘supporting evidence’ (Exhibit B, filed 21 October 2025) including photographs, a report from arborist Malcolm Bruce, and correspondence with both Ms Power and Inner West Council (Council), and ‘extra information’ (Exhibit C, filed 28 January 2026) including inter alia an updated report from Mr Bruce.

3. The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. Mr Bruce was present but had not been requested for cross-examination and gave no oral evidence during the hearing. Possibly due to the interest sparked by the volume of correspondence regarding Ms Power’s tree and her development application received by Council from Ms Hunter, three Council tree officers attended to observe the hearing. In addition to the evidence, I made my own observations of the tree and also rely on my arboricultural expertise and experience in making this decision.

Application to the Court

4. Ms Hunter applied for orders pursuant to s 7 of the Trees Act to prevent the tree causing damage to her property or injury to a person. Pursuant to s 7, the tree must be situated on adjoining land.

5. Ms Power submitted that her tree is not situated on land adjoining Ms Hunter’s land, as the two properties are separated by a laneway.

Whether the tree is situated on adjoining land

6. In P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128, the Court found at [3]-[7] that two properties separated by a public road were adjoining for the purposes of the Trees Act. In ABC v XYZ [2022] NSWLEC 1500 (ABC), a public road separated the applicant’s property from two properties on which the subject trees were situated. Based on the layout of property boundaries, one of those properties was considered to be adjoining (see [18] of ABC) while the other was not (at [19], [20] of ABC).

7. In the current proceedings, the rear boundaries of Ms Hunter’s property and Ms Power’s property are directly opposite each other across the narrow back laneway. The properties are adjoining for the purposes of the Trees Act.

Notice of the application

8. Ms Hunter gave notice of her application as required by s 8 of the Trees Act.

Jurisdiction to make orders

9. The orders that Ms Hunter seeks are orders the Court could make at s 9 of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances.

Reasonable effort to reach agreement

10. Ms Hunter wrote several times to Ms Power outlining some of her concerns about the tree’s risk (copies included in Exhibit B). Ms Power submitted that Ms Hunter’s letters were sent to Council, not to her, but her letter of 28 July 2025 (in Exhibit B) acknowledges that she “…received your letters regarding my gum tree and its canopy impacting your back garden.” The tree’s impact to Ms Hunter’s garden was only one of her concerns regarding the tree and it is not clear that all her other concerns were raised with Ms Power. Nevertheless, considering the nature of the relationship between the parties, I am satisfied that Ms Hunter made a reasonable effort to reach some agreement with Ms Power: s 10(1)(a) of the Trees Act.

Whether the tree is likely to cause damage or injury

11. The test at s 10(2) of the Trees Act must be satisfied before any orders can be made.

10 Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned—

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

12. Ms Hunter does not suggest that the tree has caused damage to her property, other than by its overhanging branches suppressing the growth of smaller trees in her own garden. Her concerns focus on the risk of the tree causing damage to her property in future, or injuring herself or others. Ms Hunter’s submissions extended broadly across numerous subjects, some of which have limited relevance to a decision within the Trees Act’s jurisdiction, while others are too vague to be addressed. For instance, in Exhibit C under ‘Case for Removal of Gum Tree’, Ms Hunter included items such as ‘Completely inappropriate position’, ‘Unpredictability’, ‘Tree is superfluous to requirements’, and ‘Is the tree falling down the hill?’ This is not to belittle Ms Hunter’s concerns for her own safety and that of her property, but her real issues must be organised in a manner that can be clearly responded to. For issues that are relevant within the framework of the Trees Act, I categorise them under the following headings:

13. Likelihood of branches falling, causing damage or injury

14. Likelihood of the tree falling over, causing damage or injury

15. Branch growth causing damage to plants in Ms Hunter’s garden

Likelihood of branches falling and causing damage or injury

13. Ms Hunter engaged Mr Bruce to assess the tree and provide recommendations. At his first inspection on 4 December 2022, Mr Bruce did not access Ms Power’s property, assessing the tree only from the back laneway. Mr Bruce applied the International Society of Arboriculture’s tree risk assessment method, commonly known as ‘TRAQ’. Mr Bruce identified codominant branch unions in the crown as a condition of concern, but found the risk of these branches causing damage to Ms Hunter’s property, or injury to a person in Stafford Lane, was low. He identified the removal of codominant branch unions as a mitigation option.

14. Mr Bruce again inspected the tree on 12 January 2026, again completing a tree risk assessment as part of his comprehensive report. In addition to the codominant branch unions, Mr Bruce identified over-extended eastern branches as a condition of concern. His risk assessment of the codominant branches remained unchanged (low risk of damage or injury), and he found the risk of over-extended eastern branches causing damage to Ms Hunter’s property was low. He again identified the removal of codominant branch unions as a mitigation option, along with some reduction of the eastern side of the tree’s crown.

15. Despite gaining a professional opinion that the tree posed a low risk of causing damage or injury, Ms Hunter insists that the risk of injury or death to herself is so great that the tree must be removed. Ms Hunter submitted that none of us could be sure about the tree’s safety – for instance, despite his findings, Mr Bruce told her he could not guarantee that the tree would not fall over.

16. Ms Hunter provided photographs showing a live branch that fell from the tree into the laneway in 2018. It resulted in no damage or injury and was cleared away firstly by another neighbour and then by the State Emergency Service. Photographs of other branches in the laneway during the seven years since then show only small dead branches. Even these, Ms Hunter submitted, are likely to injure someone as the laneway experiences 50–100 movements (pedestrians and cars) per day.

17. Ms Hunter referred to other trees that have fallen over in Sydney or elsewhere. This does not assist the Court, as the details of those tree failures, particular to each tree and its growing environment, are unknown to me.

18. I observed no significant structural defects in the tree. Some small dead branches are held within the tree’s crown, but not above Ms Hunter’s property. Should they fall, they would likely fall into the laneway or another neighbouring property where, based on their size and fall distance, they are unlikely to cause injury in the unlikely event that they hit someone. During the hearing, which we conducted in the laneway and ran for more than two hours, three cars passed through the makeshift courtroom.

19. No large live branches appear likely to fall in the near future. That is, my observations support Mr Bruce’s finding that the risk of branches falling and causing damage or injury is low. Mr Bruce recommended some mitigation options, but his instructions might have included long-term management options for the tree, whereas the question being asked of the Court at s 10(2) of the Trees Act is whether the tree is likely to damage the applicant’s property in the near future or is likely to injure a person. I find the answer to that question is: no. Therefore, no orders can be made on this element of the application.

Likelihood of the tree falling over and causing damage or injury

20. In 2022, Mr Bruce found it improbable that the whole tree would fall over, so it posed a low risk of causing damage to Ms Hunter’s property. His findings regarding the risk of whole tree failure remained unchanged in 2026.

21. Ms Hunter submitted that excavation works on Ms Power’s property have damaged the tree’s roots, such that the tree is likely to fall downhill, towards and onto her property, demolishing all within its path. She said that Ms Power’s garden is not big enough to sustain the tree, especially once Ms Power’s development, which includes works within her back yard, is completed. Ms Hunter pointed to a photo at Figure 9 of Mr Bruce’s 2026 report showing fine roots exposed in the soil cut for a plunge pool. She also pointed to the recent installation of a stormwater pipe approximately 1 metre south of the tree – works she says were not assessed or approved by Council as the pipe was not shown on the approved development plans. Ms Hunter submitted that the trench for this pipe was 1–2 metres deep at the time of excavation, although it was filled in by the time of the hearing.

22. Ms Power submitted that she supervised construction works on her property and monitored the tree throughout. All works were in accordance with her approved development plans, other than the stormwater pipe that needed to be relocated due to unforeseen site restrictions. Ms Power said the excavation for the stormwater pipe was only 300 mm deep. She did not see any root damage in the trench. She allowed access to her property for Mr Bruce to inspect the site after the stormwater pipe was installed.

23. None of the evidence suggests that roots critical for the tree’s support have been damaged. Figure 9 of Mr Bruce’s report shows only fine roots growing in an area where they might be expected. The site cut for the plunge pool was approved by Council and appears to have had no adverse impact on the tree. Excavation for the stormwater pipe is much closer to the tree and might be of greater concern were it not for the fact that it is on lower ground adjacent to a raised area where the tree grows and the lower ground is separated from the tree by a retaining wall. The wall appears to be founded into the lower ground to support the higher soil to its north. Any roots to the south of the tree must pass beneath the wall, resulting in them being at a greater depth than might otherwise occur, at least within a short distance of the wall. The new pipe is close to the wall. The stormwater pipe’s outlet is just to the east, at ground level at the edge of the laneway. There is no reason for the trench for this pipe to have been excavated any deeper than the 300 mm suggested by Ms Power. For this reason, I find it unlikely that the tree’s structural roots have been damaged. Ms Hunter has presented nothing that would demonstrate otherwise, other than suggesting it is a possibility. I am not satisfied that the tree is likely to fall and cause damage or injury. Pursuant to s 10(2) of the Trees Act, I cannot make orders on this element of the application.

Branch growth causing damage to plants in Ms Hunter’s garden

24. It is true, as Ms Hunter claims, that some of the tree’s branches extend eastward, above Stafford Lane, to overhang Ms Hunter’s property. Ms Hunter submitted that these branches interfere with her own trees, depriving them of space to grow. She said that a banksia in her garden is bent due to overshadowing, but provided no photographs of this and did not show the Court. A hackberry (Celtis sp.) is the largest tree growing near Ms Hunter’s rear boundary. Its branches intermingle with those of the yellow box that reach across to her property. The hackberry appeared healthy, showing no signs of suppression. The yellow box has not damaged the hackberry, nor is it likely to do so in the near future. Other vegetation also appears undamaged. Pursuant to s 10(2) of the Trees Act, no orders can be made on this element of the application.

Conclusion

25. Ms Power’s yellow box has not caused, is not causing, nor is likely in the near future to cause, damage to Ms Hunter’s property. It is unlikely to cause injury to a person. Pursuant to s 10(2) of the Trees Act, it follows that the Court cannot make any orders for the tree. Therefore the matters at s 12 of the Trees Act do not require consideration. Worth noting, however, is that the yellow box is a mature native tree that benefits the environment, provides ecosystem services such as shading and cooling, and contributes to public amenity.

26. Ms Hunter’s submissions went well beyond what is mentioned above. While I heard and noted all of her submissions, in the interest of efficiency I have addressed only the issues relevant to this decision. In response, Ms Power presented submissions to demonstrate actions she has taken to care for the tree and the safety of others. Given my findings above, the bulk of her submissions have not been included in this judgment. Ms Power pointed out that Ms Hunter could exercise her common law right of abatement by pruning branches over her property, should she wish, subject to Council’s tree controls. If Ms Hunter remains concerned about overhanging branches, that is an avenue she may wish to explore.

Orders

27. The Court orders that:

28. The application is refused.

29. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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