Ratajski v Smith

Category: Principal judgment

Parties: Dominik Ratajski (Applicant)
Alison Smith (First Respondent)
Chris Akayan (Second Respondent)

Representation: Counsel:
D Ratajski (Self-represented) (Applicant)
A Smith (Self-represented) (First Respondent)
C Akayan (Self-represented) (Second Respondent)

File Number(s): 2026/29946

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 broad-leaved privet (Ligustrum lucidum) (the tree) growing in the back garden of the Roseville property belonging to Chris Akayan overhangs the adjoining property belonging to Dominik Ratajski. Mr Ratajski has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking removal of the tree.

2. The hearing took place onsite, allowing the Court to observe the tree and both properties. At the outset of the hearing, the Court clarified ownership of the property on which the tree is situated. Although Mr Ratajski identified Ms Smith as the only respondent, the property where she and Mr Akayan live is owned by Mr Akayan. The Court granted leave for the application to be amended, joining Mr Akayan as the second respondent. The parties were self-represented.

Application to the Court

3. Mr Ratajski applied for orders pursuant to s 7 (Pt 2) of the Trees Act to prevent the tree causing injury. As required by s 7, the tree is situated on adjoining land.

Notice of the application

4. Mr Ratajski gave notice of his application as required by s 8 of the Trees Act.

Jurisdiction to make orders

5. The order that Mr Ratajski seeks for tree removal is an order 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

6. Via email on 13 November 2025, Mr Ratajski asked Ms Smith to remove the tree. I am satisfied that he made a reasonable effort to reach agreement: s 10(1)(a) of the Trees Act.

Whether the tree is likely to cause injury

Submissions

7. Mr Ratajski submits that the tree is toxic to humans and animals and that it is an allergen known for triggering hay fever and asthma. Because of this, he says the tree is likely to cause injury by causing allergic reactions. He also submits that the tree is a nuisance, overhanging his property, including his clothesline, and dropping debris. The tree is also an environmental weed.

8. Ms Smith and Mr Akayan submit that they do not object to removing the tree. Ms Smith said she had not read Mr Ratajski’s emails before receiving his tree dispute application. After receiving the application, Ms Smith and Mr Akayan applied to Ku-ring-gai Council (Council) for permission to remove the tree. Council apparently told Ms Smith and Mr Akayan that Council would not determine the application while the matter was before the Court. As a result, even though Ms Smith and Mr Akayan wish to remove the tree, they cannot do so until the Court makes a determination in these proceedings.

Findings

9. The mature privet overhangs Mr Ratajski’s property. Its pollen, which is a known allergen triggering hay fever and asthma in many people, falls and blows into his property during the tree’s flowering season.

10. The Court’s ‘Practice Note Class 2 Tree Applications’ (Practice Note) at cl 15 states:

“When a tree application is made seeking an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition, the supplementary directions set out in Schedule B will be made concerning evidence in such cases.”

11. As set out in Schedule A of the Practice Note, Direction 6 ‘Applicant’s Evidence’ usually includes the following note:

“Note: When an application is made for an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition, specific supplementary directions [see Schedule B] will be made concerning evidence in such cases.”

12. The Practice Note’s Schedule B contains further directions, including:

Supplementary directions for an order to prevent injury to any person and the “injury” is an illness, allergy or similar medical condition.

1. Further to direction 6 of the principal directions in this matter, the applicant is to provide, by the close of business on ……………………………, any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a “likely cause of injury to any person”;

2. …

13. Directions made at the preliminary hearing in these proceedings did not include the note to Direction 6 above, nor did they include Schedule B. Mr Ratajski was not directed to provide any evidence to demonstrate that the tree is likely to cause injury via allergens. Considering that privet is widely accepted to be a common allergen, I accept that the tree is likely to cause injury and the Court requires no further evidence from Mr Ratajski. The Court can make orders in these proceedings: s 10(2)(b) of the Trees Act.

Other relevant matters

14. Before determining these proceedings, I am required to consider the matters at s 12 of the Trees Act. Relevant matters are considered below.

15. Mr Akayan’s property is within a heritage conservation area. As a result of being within a heritage conservation area, although privet is included in Council’s exempt tree species list, that exemption does not apply and Council consent is ordinarily required to remove the tree. Pursuant to s 6(3) of the Trees Act, Council consent is not required to carry out any tree works ordered in these proceedings.

16. The tree is one of many within the back garden of Mr Akayan’s property. Its removal will cause no significant loss of canopy cover. It cannot be seen from the street and its removal would not impact local heritage values.

17. The NSW WeedWise website includes the following profile for broad-leaved privet:

Broad-leaf privet is a fast-growing tree that:

outcompetes native plants

reduces food and habitat for native animals

reduces yields in orchards, pastures and plantation forests and is expensive to control

can restrict access to waterways

is poisonous and can cause skin irritation and respiratory issues in people

is poisonous to livestock.

18. The benefits of removing this tree outweigh the small loss of tree canopy.

19. Orders sought in Mr Ratajski’s application did not include an order for costs, but I note that at question 14 of his claim details form (Form H) he claims compensation of $375 for his Court application fee. Commissioners of the Court do not have the power to make an order for costs. The Court has considered claims for costs in several matters under the Trees Act: for instance, see Curtis v Pranatajaya [2025] NSWLEC 33. Should Mr Ratajski wish to pursue an order for costs, he would need to file a Notice of Motion with the Court.

Orders

20. The Court orders:

21. Chris Akayan is joined as the second respondent in these proceedings.

22. The application to remove the tree is granted.

23. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to remove the privet within 30 days of the date of these orders. Tree removal works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

24. The respondents are to take all reasonable steps to prevent the privet regrowing.

25. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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