Rowe v Cummings

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to the applicant’s property – the respondent wants to remove the tree – orders for pruning and compensation

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12
State Environmental Planning Policy (Biodiversity and Conservation) 2021

Cases Cited: Yang v Scerri [2007] NSWLEC 592

Texts Cited: Australian Standard AS4373:2007 ‘Pruning of amenity trees’ (2007)
Inner West Tree Management Development Control Plan 2023
Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category: Principal judgment

Parties: Margaret Jane Rowe (Applicant)
Patricia Cummings (Respondent)

Representation: Counsel:
M Rowe (Self-represented) (Applicant)
P Cummings (Self-represented) (Respondent)
W Mobbs (Agent) (Respondent)

File Number(s): 2025/42791

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 large bangalay (Eucalyptus botryoides) grows in the rear courtyard of Patricia Cummings’ Balmain property. Branches have fallen onto the roof of the neighbouring dwelling belonging to Margaret Rowe. Ms Rowe has asked Ms Cummings to remove other branches overhanging her property. In 2024, Ms Cummings engaged an arborist to remove some deadwood and other branches, less than 10% of the tree’s crown as can be done without council consent, but not the branches that concern Ms Rowe. Ms Cummings wants to remove the tree, but is of the opinion that Inner West Council (Council) would not permit her to remove it. She has not applied for Council’s consent. Ms Rowe has applied to the Court seeking orders for Ms Cummings to remove branches above Ms Rowe’s property and for Ms Cummings to pay Ms Rowe $1,100, being the insurance excess incurred for roof repairs after a branch fell onto her roof.

2. The final hearing took place onsite, allowing the Court to inspect the tree and the surrounding environment. Ms Rowe was self-represented; Ms Cummings was represented by William Mobbs as her agent but also made her own submissions. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Ms Rowe has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders she seeks are orders the Court can make at s 9 of the Trees Act.

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

5. Has the applicant, Ms Rowe, made a reasonable effort to reach agreement with the respondent, Ms Cummings, and given the required notice of the application: s 10(1)(a) of the Trees Act?

6. Can the Court 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. If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?

The tree

5. The bangalay is over 20 metres tall with a broad crown that spreads over Ms Cummings’ courtyard and dwelling and above adjoining properties on either side. Its stem is more than a metre in diameter. The tree appears fairly healthy, with some deadwood throughout its crown as might be expected for a tree of this size and age. Some branches in its outer crown appear overextended, including long branches overhanging Ms Rowe’s property. During my assessment of the tree, limited to ground-based observations, I saw no other significant structural defects. Structural roots appear undisturbed and undamaged. Failure of the tree’s root plate is unlikely.

Reasonable effort to reach agreement

6. Ms Rowe asked Ms Cummings to remove branches over her property. It was clear from Ms Cummings’ responses that she would not carry out further pruning works, partly due to her desire to remove the tree. I am satisfied that Ms Rowe has made a reasonable effort to reach agreement with Ms Cummings and that the timeframe set down by the Court has allowed for the required notice of the application.

Damage or injury

7. Branches have fallen from the tree onto Ms Rowe’s roof, causing significant damage. One branch pierced the roof tiles and ceiling. This is not disputed. Branches that remain above Ms Rowe’s dwelling are overextended and likely to fall in the near future, or within 12 months: see Yang v Scerri [2007] NSWLEC 592 at [14]. I am satisfied that the tree has caused, and is likely in the near future to cause, damage to the applicant’s property.

8. Other overextended branches to the southeast, overhanging another property and a laneway, are likely to fall in the foreseeable future and would injure anyone beneath. I am satisfied that the tree is likely to cause injury.

Consideration of relevant matters

9. The tree has damaged the applicant’s property, and is likely to cause further damage to her property and injury to a person, allowing the Court to make orders: s 10(2)(a) of the Trees Act. Before making any orders, the Court must consider the matters at s 12. I discuss below the s 12 matters that are relevant to my decision.

Location of the tree

10. The tree’s stem is well away from Ms Rowe’s property but its broad crown spreads over her property and another to the southeast.

Consent requirements

11. Ms Cummings’ property is within a Heritage Conservation Area, so removing the tree, or pruning more than 10% of its canopy, would ordinarily require Ms Cummings to lodge a Development Application rather than a Tree Works Permit Application: Inner West Tree Management Development Control Plan 2023. Despite this, pursuant to s 6(3) of the Trees Act, any tree works ordered in these proceedings will not require development consent.

12. Mr Mobbs argued that it is unfair for Ms Cummings to bear the significant costs of maintaining the tree when its benefits are shared by the public. But this is the nature of tree controls within the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and relevant Development Control Plans.

The tree’s benefits

13. The tree contributes significantly to public amenity, to the respondent’s landscape, and to the local environment. Its crown provides shading, cooling, habitat and other ecosystem services.

Impacts of pruning

14. The Court can make orders to prevent damage to the applicant’s property or injury to any person: s 9 of the Trees Act. The tree would tolerate the pruning required to remove the dead and hazardous branches to prevent damage to the applicant’s property and injury to any person. Within the framework of the Trees Act, I see no need for orders beyond those sought by Ms Rowe. Should Ms Cummings wish to carry out further works to the tree, she may lodge a Development Application to Inner West Council.

Actions of the parties

15. Ms Rowe has not contributed to the risk of damage through any acts or omissions. As is usual in such matters, the tree’s owner will bear the costs of the works ordered below.

16. Ms Rowe promptly brought to Ms Cummings’ attention a broken branch that was suspended above her dwelling. Ms Cummings took no action to remove the branch, which later fell and damaged Ms Rowe’s dwelling, resulting in an insurance claim with an excess payment of $1,100 incurred by Ms Rowe. As Ms Cummings was notified of the issue and could have reasonable prevented the damage, it seems reasonable for Ms Cummings to compensate Ms Rowe for the insurance excess. An order will be made for a payment of compensation.

Consent not required to carry out orders

17. Council consent is not required to carry out the tree works ordered below: s 6(3) of the Trees Act. The respondent may require Council consent should she wish to carry out any tree works beyond that ordered below.

Orders

18. The Court orders:

19. The application is granted.

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

(a) Remove long branches over the applicant’s property (see photos in Annexure A); (b) Reduce other overextended branches around the tree’s outer crown, especially to the southeast where branches overhang a laneway and another neighbouring property (see photos in Annexure A); (c) Remove all deadwood greater than 50 mm in diameter.

3. The works in Order (2) must be done in accordance with AS 4373 ‘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 applicant 7 days’ notice of the works in Order (2).
5. The applicant is to allow any access required for completion of the works in Order (2) during reasonable hours of the day.
6. Within 30 days of the date of these orders, the respondent is to pay the applicant $1,100.
7. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Annexure A.2.70 MB.pdf