Ranasinghe v Howes

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

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

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)
Willoughby Development Control Plan 2006

Category: Principal judgment

Parties: Roshantha Anthony Mahinda Ranasinghe (First Applicant)
Indrica Prashanthi Ranasinghe (Second Applicant)
Rasma Zaiga Howes (Respondent)

Representation: Counsel:
R Ranasinghe (Self-represented) (First Applicant)
I Ranasinghe (Self-represented) (Second Applicant)
G Liepins (Agent) (Respondent)

File Number(s): 2025/123032

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 pin oak (the tree) grows near the rear boundary of the Willoughby property where Rasma Howes (the respondent) and Gundars Liepins (her husband) live. In 2020, a new double-storey dwelling was constructed on the adjoining property to their south, close to the tree. Roshantha and Indrica Ranasinghe (the applicants) purchased the adjoining property in February 2021. The Ranasinghes seek orders from the Court for Ms Howes to prune the tree to clear branches near their dwelling, and for the building clearance to be maintained through annual pruning. Ms Howes submitted alternative orders, most of which were for the purpose of correcting omissions and errors that occurred during the construction process, before the Ranasinghes purchased their property. The Court has no jurisdiction to make most of Ms Howes’ proposed orders.

2. The hearing took place onsite, allowing me to observe the tree, the applicants’ dwelling and both properties. The Ranasinghes were self-represented; Mr Liepins assisted Ms Howes as her agent. Daniel Leonard, a consulting arborist engaged by the Ranasinghes, provided evidence during the hearing. I also rely on my own arboricultural expertise and experience in making this decision, along with material filed by the parties.

Framework for this decision

3. The Ranasinghes 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, other than an order to control some weeds and vines that they concede are unlikely to cause damage or injury.

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

5. Whether the applicants have made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 10(1)(a) of the Trees Act.

6. 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).

7. 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

5. The parties attended mediation through the Community Justice Centres but were unable to reach agreement. I am satisfied that the Ranasinghes made a reasonable effort to reach agreement with Ms Howes 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

6. Mr Leonard identified the tree as a mature Quercus palustris (pin oak) approximately 17 metres tall with a stem diameter of approximately 70 cm. The tree is healthy and structurally sound, without major defects.

7. Many of the matters raised in documents and submissions fall outside the jurisdiction of the Trees Act. I deal here only with those matters falling within the Court’s jurisdiction under the Trees Act.

8. The Ranasinghes do not claim that the tree has caused, or is causing, damage to their property. They do not claim that it is likely to cause injury to a person. They claim that it is likely to cause damage to their property in the near future.

9. Some of the tree’s branches are close to their dwelling’s northern wall and roof. The tree, being deciduous, is now leafless. Mr Leonard observed that branches and foliage were contacting the dwelling when he inspected the tree in February, when the tree was in leaf. These branches might scratch and cause minor damage to the surface of the wall and to the roofing material. I am satisfied that the tree is likely to cause damage to the dwelling in the near future. Although the damage would be relatively minor, this allows the Court to make orders: s 10(2)(a) of the Trees Act. Works required to prevent such damage would also be relatively minor, so I am inclined to make orders to prevent damage.

Consideration of relevant matters

10. I have considered the matters at s 12 of the Trees Act and discuss here, for the sake of brevity, only those that are relevant. Importantly, the tree was there when the dwelling was constructed, and the pruning carried out at the time, by the builder or their arborist, was done poorly, was inadequate for clearance, and was not done in accordance with the relevant Australian standard: AS 4373:2007 ‘Pruning of amenity trees’. As a result, regrowth since then is closer to the applicants’ dwelling that it might otherwise have been. Therefore, the pruning now required should be paid for by the applicants.

11. Pruning should allow for some future regrowth and should consider the tree’s health. Smaller branches below roof level should be pruned back to the tree’s stem (see photo in the attached annexure). Branches above the dwelling should be pruned to provide vertical clearance of 2 metres above the roof. This does not require the removal of all branches above the roof.

12. Ms Howes is concerned about the tree’s imbalance and potential instability, but there is no evidence that the tree is unstable or that its asymmetrical crown poses any risk. Mr Leonard saw no issue with the tree’s crown. He thought the tree was unlikely to fall over.

13. The applicants can, in future, prune small branches over their dwelling to maintain the building clearance established by these orders, as this falls within the permit exemptions at cl 4.2 of Part G of the Willoughby Development Control Plan 2023: “…the activity is selective pruning for up to a total of 10% of an individual tree’s crown over a 5-year period.”

14. Ms Howes will not require a permit from Willoughby City Council to carry out the pruning works ordered below (s 6(3) of the Trees Act). Ms Howes wishes to be in control of the pruning works, so the Ranasinghes will reimburse her for the cost of the works. Should Ms Howes wish to carry out further pruning at the same time, she should obtain any consent required and it must be invoiced separately.

Orders

15. The Court orders:

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

17. The respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to prune the pin oak within 60 days of the date of these orders as follows:

(a) Remove branches that are within 1.5 m of the applicants’ dwelling’s northern wall and are less than 200 mm in diameter by pruning back to their branch collars at the stem; and reduce any branches that are within 1.5 m of the applicants’ dwelling’s northern wall and greater than 200 mm in diameter by pruning back to a suitable lateral branch to provide at least one metre of clearance to the applicants’ dwelling (see photo in Annexure A); (b) Prune branches over the applicants’ dwelling to provide 2 metres of vertical clearance above the roof, removing branches back to their points of attachment to the larger branches above (see photo in Annexure A); (c) Remove any deadwood greater than 50 mm diameter over the applicants’ dwelling.

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 respondent is to give the applicants 7 days’ notice of the works in Order (2).
5. The applicants are to allow all access required for completion of the works in Order (2) during reasonable hours of the day.
6. Within 7 days of receiving a copy of a receipted paid invoice for the works in Order (2), and for only those works, the applicants are to pay the respondent the amount of the invoice. If the applicants do not receive such a copy of the invoice within 90 days of the date of these orders, this order lapses.
7. The exhibits are returned, other than exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Amendments

16 July 2025

Amended from Class 1 to Class 2.