Watson v Cooper

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — property damaged by neighbouring tree — whether further damage is likely — order for compensation — orders for pruning

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

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292

Category: Principal judgment

Parties: Wendy Watson (Applicant)
Dylan Cooper (First Respondent)
Codie Stamford (Second Respondent)

Representation: Counsel:
W Watson (Self-represented) (Applicant)
D Cooper (Self-represented) (First Respondent)
C Stamford (Self-represented) (Second Respondent)

File Number(s): 2025/301285

Publication restriction: Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER**:** For several decades, a silky oak (the tree, Grevillea robusta) has stood in the back garden of the Thornton property now owned by Dylan Cooper and Codie Stamford (the respondents). Wendy Watson (the applicant) purchased the adjoining property to the respondents’ east in 2018. Ms Watson has been concerned about the tree for some time. Soon after the respondents purchased their property in 2021, she visited them to discuss the tree. Since then she has visited their property agent several times, including once around October 2024, to reiterate her concerns. The agent told her, as did the respondents, that she could prune the tree if she wished.

2. In January 2025, a large live branch fell from the tree onto Ms Watson’s property, damaging her roof and fence. Her insurer paid for the repairs, other than an excess of $500 incurred by Ms Watson.

3. Ms Watson has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for the respondents to remove the tree, repair the dividing fence, and to pay her compensation for property damage.

4. The onsite hearing allowed the Court to inspect the tree and both properties. The parties were self-represented. Steve Watson (unrelated to the applicant), arborist with ArborCert, provided a report and oral evidence at the hearing. I also rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

5. The orders that the Ms Watson seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit. However, the Court must not make any order unless it is satisfied, first, that Ms Watson has made a reasonable effort to reach agreement with the respondents, and second, that the tree has caused, is causing, or is likely in the near future to cause, damage to her property or is likely to cause injury to a person: s 10 of the Trees Act. Before making any orders, the Court must consider relevant matters at s 12 of the Trees Act.

Reasonable effort to reach agreement

6. Ms Watson described her discussions with the respondents and with their property agents. I am satisfied that she made a reasonable effort to reach agreement with the respondents and that she gave notice of the application as required by s 8 of the Trees Act.

The tree has caused, and is likely to cause, damage to the applicant’s property

7. The branch that fell from the tree in January 2025 damaged Ms Watson’s roof and side boundary fence. Another branch overhanging her property appears likely to fall in the near future. Mr Watson identified further hazards in the tree’s crown and recommended removal of the tree. Mr Watson also thought the tree was at risk of falling entirely, as its roots were cut on Ms Watson’s property some 20 years earlier. He stated that the tree had lost 40% of its capacity to uptake water and nutrients. With the prevailing winds from the west, Mr Watson thought the tree would fall onto Ms Watson’s property. However, in my view, Mr Watson exaggerated the level of risk. Other branches appear unlikely to fall onto Ms Watson’s property. The tree appeared stable in the ground, with no signs of root plate heave. Mr Watson neglected to consider the roots that would have grown since the site cut on Ms Watson’s property 20 years ago.

8. Mr Watson also stated that the tree’s roots are damaging a timber retaining wall on Ms Watson’s property. He based this on visual observations, saying the timber was pushed out be a few millimetres. He has not dug behind the wall to investigate the presence of tree roots. On the available evidence, I cannot be satisfied that the tree has damaged the retaining wall.

9. Ms Watson claimed that debris from the tree damaged her pergola, air conditioning unit and solar panels. She submitted that the tree sheds greater quantities of debris than the average tree. She had to install gutter guard to prevent debris building up in gutters, but debris still accumulates around her solar panels. She is unable to access the roof to carry out any maintenance herself. This issue would only enliven the Court’s jurisdiction at s 10(2)(a) of the Trees Act if it caused, or is likely in the near future to cause, damage to Ms Watson’s property. Taking her claim at its highest, I accept that debris has caused some damage to Ms Watson’s pergola.

Orders can be made

10. The tree has caused, and is likely to cause, damage to Ms Watson’s property. Orders can be made to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree (s 9 of the Trees Act).

Consideration of relevant matters

11. As required by s 12 of the Trees Act, I consider the following matters before determining this application.

12. The tree is close to the common boundary shared by the parties. Branches on the eastern side of the tree’s crown overhang Ms Watson’s property, including her pergola and outdoor seating area. One branch over Ms Watson’s property is likely to fail in the foreseeable future.

13. Consent to prune or remove the tree would ordinarily be required from Maitland City Council (Council).

14. The silky oak provides shading and cooling. It contributes to the landscape value of the respondents’ property. Its flowers would be a food source for native birds.

15. Pruning the tree to remove branches likely to fail in the foreseeable future could be done in accordance with Australian Standard AS 4970:2007 Pruning of amenity trees, without adverse impacts to the tree.

16. At ss 12(h) and 12(i), where the tree has caused damage or is likely to cause damage or injury, the Court is to consider acts and omissions of the parties that may have contributed to such damage, or are likely to contribute to such damage or injury.

17. With the principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker) in mind, I would not make any orders to remedy, restrain or prevent damage caused by debris from the tree. The principle at [20] in Barker states:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

18. Even if the tree sheds more twigs and leaves than the average tree, I see no reason to veer from this long-held principle here. For this reason, no orders will be made to compensate Ms Watson for damage arising from this issue, such as the cost of replacing her pergola.

19. Ms Watson pointed out damage to her side boundary fence caused by the fallen tree branch in January 2025. Considering its distance from the tree’s stem, the fallen branch was clearly very long, reaching far over Ms Watson’s property. Perhaps the concerns she expressed to the respondents and their property agent prior to the branch falling were justified. Had her requests for action been taken seriously, the respondents might have taken some reasonable steps to prevent damage: having the tree assessed, for instance, or pruned. But they did not. For this reason, they will be ordered to compensate Ms Watson for the $500 insurance excess she incurred.

20. The dividing fence between the parties’ properties is slightly uneven and out of alignment near the tree. Mr Cooper pointed out other sections of the fence that are equally out of alignment. The fence is functional and the respondents see no need to replace it. I cannot be satisfied that the tree has damaged the fence. Even if I were satisfied of this, any damage is so minor that it does not require orders from the Court.

Orders

21. The Court orders:

22. The application to remove the tree is refused.

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

24. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the tree within 30 days of the date of these orders to:

(a) remove all dead branches greater than 30 mm in diameter; (b) remove the two longest branches above the applicant’s property (see photograph in Annexure A).

4. The works in Order (3) 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’.
5. On at least 2 days notice from the respondents, the applicant is to allow any access required to her property for completion of the works in Order (3) during reasonable hours of the day.
6. Within 30 days of the date of these orders, the respondents are to pay the applicant $500.
7. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Annexure A (551 KB, pdf)