Shone v Szafraniec

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — two neighbouring trees — risk of damage to property — one tree fell after proceedings commenced — no orders for compensation — orders for pruning one tree

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 4, 7, 8, 9, 10, 12

Cases Cited: Yang v Scerri [2007] NSWLEC 592

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: Wendy Shone (First Applicant)
Robert Jones (Second Applicant)
Michael Szafraniec (First Respondent)
Emma Lindsay (Second Respondent)

Representation: Counsel:
W Shone (Self-represented) (First Applicant)
R Jones (Self-represented) (Second Applicant)
M Szafraniec (Self-represented) (First Respondent)
E Lindsay (Self-represented) (Second Respondent)

File Number(s): 2025/181068

Publication restriction: Nil

Judgment

1. COMMISSIONER: Wendy Shone and Robert Jones (the applicants) own and live at a residential property in Picton, southwest of Sydney. They have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders relating to two mature eucalypts on the adjoining property belonging to Michael Szafraniec and Emma Lindsay (the respondents). One tree (T1) is near the properties’ front boundaries, well away from dwellings. The applicants want it removed, otherwise pruned to remove all branches overhanging their property. The applicants applied for the removal of the other tree (T2) that was close to the common boundary near their dwelling. After they filed their application, but before the final hearing, T2 fell onto their property and damaged their dwelling.

2. The final hearing took place onsite, allowing the Court to inspect the trees and both properties. The parties were self-represented. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. Pursuant to s 7 of the Trees Act, the applicants have applied for orders to remedy, restrain or prevent damage to property on their land, as a consequence of two trees situated on adjoining land. The trees are ones to which the Trees Act applies. After T2 fell across the boundary and onto the applicants’ dwelling, its branches and upper stem were removed, leaving only its lower stem on the respondents’ property. Pursuant to s 4(4) of the Trees Act, T2 is still taken to be situated on the respondents’ land for the purposes of this application:

(4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.

4. The orders that the applicants seek are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

5. The Court must not make any order unless it is satisfied that the applicants have made a reasonable effort to reach agreement with the respondents and given the required notice of the application: s 10(1) of the Trees Act. The Court must also be satisfied, before making an order for any tree, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property, or is likely to cause injury to a person: s 10(2) 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

6. The applicants first asked the previous owner of the neighbouring property to remove T2 in 2018. After the respondents purchased the neighbouring property in 2022, the applicants told them of their concerns about the trees and asked them to remove T2. The applicants sent the respondents photographs of branches that fell from both T1 and T2 onto their property. The applicants submitted that the respondents, after gaining consent from Wollondilly Shire Council (Council) to remove T2, asked the applicants to share the cost of tree removal. The applicants were unwilling to pay for works they thought were the respondents’ responsibility, so commenced these proceedings. I am satisfied that the applicants made a reasonable effort to reach agreement with the respondents: s 10(1)(a) of the Trees Act. I am also satisfied that the applicants gave notice of the application in accordance with s 8 of the Trees Act, as per s 10(1)(b).

7. Other matters relating to the nature of communications between the parties were raised by the applicants and respondents. Those matters, where they are irrelevant to the decision in these proceedings, are not discussed or considered in this judgment.

Tree T1

The tree is likely to cause damage

8. T1 is a mature red spotted gum (Eucalyptus mannifera) near the front of the respondents’ property, 20–25 metres tall with a stem diameter of approximately 80 cm. From a ground-based inspection during the onsite hearing, the tree appeared relatively healthy with typical form for the species. The applicants submitted that branches have fallen from T1 without warning. One long and overextended branch reaching well beyond the common boundary between the parties’ properties overhangs the applicants’ powerline, driveway and the dividing fence. The length and weight of the branch make it more prone than others to breaking and falling. I am satisfied that it is likely to damage the applicants’ property in the near future, a period I regard as within the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592 at [14]. The tree otherwise appeared without any major defects.

Matters considered

9. I have considered the matters at s 12 of the Trees Act. T1 is close to the common boundary. Pruning or removing T1 would require Council’s consent. No permit has been obtained to prune or remove T1.

10. Pruning the tree to remove the overextended branch would mitigate the risk of damage to the applicants’ property without significant adverse impacts to the tree. Any large dead branches over the applicants’ property could be removed at the same time to further minimise the risk of damage. This native tree contributes to the local ecosystem; it provides shading and cooling, habitat and amenity. The required pruning would not reduce these values in any significant way. The respondents submitted that they have limited financial resources but are willing to prune the tree if needed. The applicants have not contributed to the risk through their own acts or omissions, so the respondents will pay for pruning works.

Tree T2

The tree has caused damage

11. T2 is, or was, a mature narrow-leaved black peppermint (Eucalyptus nicholii) close to the common boundary between the two properties. Its stem divided just above ground level into two main stems supporting a broad crown that spread over both properties.

12. The applicants submitted that T2’s condition had deteriorated over recent years. Branches, large and small, fell from the tree periodically, causing them concern that a branch would damage their property or injure somebody. They raised these concerns with the respondents. In their application, the applicants expressed a concern that the tree might fall onto their home, although it is unclear if they communicated this particular concern to the respondents. The applicants thought that the tree’s roots had caused damage to the driveway and a retaining wall and had damaged and blocked a pipe from their bathroom.

13. On 10 July 2025, after the applicants commenced these proceedings, T2 fell onto their property, causing significant damage to their dwelling and damaging the dividing fence. The Court is left with no doubt that T2 has damaged the applicants’ property.

Matters considered

14. T2 was closed to the common boundary shared by the parties. Its stem pushed against, and displaced, the dividing fence. Pruning or removing T2 would have required Council’s consent. The applicants submitted that Council refused an application from the previous owners of the respondents’ property to remove T2 in or around 2018 because the tree was not dead, dying or dangerous. The respondents had gained permission from Council to remove T2 as part of their development consent to demolish their dwelling and construct a new dwelling.

15. The applicants did not contribute, through their own acts or omissions, to the damage caused by T2. They had asked the respondents to remove T2. The respondents submitted that they had gained consent to remove T2, had planned to remove T2, but the timing of tree removal was constrained by their financial resources. What remains of T2 lies wholly upon the respondents’ land and can be removed at their discretion. Its removal no longer requires Council’s consent.

16. The applicants submitted that their insurer has approved their claim to repair all damage that T2 caused to their property: their dwelling and the dividing fence. Although the respondents repaired the dividing fence to a standard they thought suitable, the applicants thought it was not to a suitable standard.

17. The applicants submitted that the alternative accommodation offered by their insurer did not suit their needs, so they might incur additional accommodation costs to stay elsewhere during the repair works. The applicants submitted that their insurance premiums are likely to increase as a result of their recent claim. The applicants submitted that they may wish to claim compensation for these unquantified expenses – alternative accommodation and a potential increase to their insurance premium – from the respondents as part of these proceedings.

18. No orders will be made for compensation for a few reasons. First, the amounts sought by the applicants are unquantified. Second, any increase to the applicants’ future insurance premium might be due to other reasons – after all, insurance premiums generally increase every year. Third, the applicants’ insurer has offered alternative accommodation, so if it is unsuitable for a credible reason that is surely a matter between the applicants and their insurer. And finally, while the respondents had been provided with evidence, in the form of photographs, showing that branches large and small had fallen from T2, nothing indicates that they should have expected the tree might fall over. Had they pruned the tree to minimise the likelihood of further branch failure, T2 might still have fallen onto the applicants’ property.

19. Repairs to the fence, as proposed by the applicants and covered by the applicants’ insurer, might require access to the respondents’ property, so an order for access is included in the judgment.

20. For the reasons set out in this judgment, an order will be made for T1 to be pruned at the respondents’ cost, and an order will be made to allow property access as required during fencing works.

Orders

21. The Court orders that:

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

23. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune T1 within 60 days of the date of these orders to:

(a) remove all dead branches greater than 25 mm in diameter above the applicants’ property; (b) remove the overextended branch above the applicants’ property and powerline (see Annexure A).

3. The works in Order (2) 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’.
4. On at least 2 days notice from the applicants, the respondents are to allow any access required to their property for completion of the applicants’ proposed repairs to the dividing fence, if those works are done within 6 months of the date of these orders.
5. The exhibits are returned, other than Exhibit A.

D Galwey

Commissioner of the Court

Annexure A (635 KB, pdf)

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Amendments

11 December 2025

Corrections made to paragraphs [12], [18] and 20].