Badolato v Ware - [2025] NSWLEC 1704

Land and Environment Court

New South Wales

Medium Neutral Citation: Badolato v Ware [2025] NSWLEC 1704
Hearing dates: 26 June 2025
Date of orders: 26 September 2025
Decision date: 26 September 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted to the extent of the following orders (trees numbered as per the application Form H (in Exhibit A).
(2) Within 14 days of the date of these orders, the respondents are to pay the applicant compensation for damage of $918.
(3) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to carry out the following works within 30 days of the date of these orders:
(a) Prune Trees 1, 2, 4 and 6 to
(i) remove dead branches greater than 25 mm in diameter;
(ii) reduce overextended branches above the applicant’s property by pruning them back to suitable lateral branches or to their branch collars, removing no more than 20% of live crown mass;
(iii) remove broken branches; and
(iv) remove any other branches identified as hazardous during the works.
(b) Remove Tree 5.
(4) Within 90 days of the date of these orders, the respondents are to plant, at least one metre from any boundary, a native tree that will reach a height of at least 8 metres at maturity.
(5) If Tree 3 is not removed (as permitted by Georges River Council’s Development Consent for DA2022/0605) within 30 days of the date of these orders, the respondents are to:
(a) Engage a suitably insured and qualified (minimum AQF level 3) arborist to prune Tree 3 within 60 days of the date of these orders to
(i) remove dead branches over the applicant’s property;
(ii) provide at least 1 metre clearance between the applicant’s property and all tree branches; and
(iii) remove any other branches identified as hazardous during the works.
(b) Engage a suitably qualified arborist (minimum AQF level 5) within 60 days of the date of these orders to carry out an assessment of structural integrity at the stem cavity using sonic tomography, resistance drilling, or another suitable method, and to provide a written report with recommendations to mitigate identified risks with timeframes specified for any works.
(c) Provide a copy of the report from Order 5(b) to the applicant within 7 days of obtaining the report.
(d) Engage a suitably qualified arborist to carry out all works recommended in the report from Order 5(b) within the specified timeframes.
(6) Works in Orders (3) and (5) 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’.
(7) The respondents are to give the applicant 7 days notice of all works in Orders (3) and (5).
(8) The applicant is to allow any access required for completion of the works in Orders (3) and (5) during reasonable hours of the day.
(9) The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Badolato v Ware

Details

AGLC: Badolato v Ware [2025] NSWLEC 1704
Case: [2025] NSWLEC 1704
Decision Date: 26 September 2025

CaseChat Overview and Summary

In the Local Court of New South Wales, Badolato v Ware was heard and determined. The applicant, Badolato, sought an order for the respondents to undertake various works in relation to trees on their property, which borders the applicant's land. The primary dispute centred around the maintenance and pruning of the trees, as well as the replacement of a tree that was removed. The court was tasked with determining whether the respondents were required to undertake the specified works and, if so, what compensation, if any, was owed to the applicant for the damage caused by the trees.

The central legal issue before the court was whether the respondents were obligated to perform the tree-related works as requested by the applicant. This included pruning certain trees and removing another, as well as planting a replacement tree and addressing the structural integrity of a specific tree if it was not removed. The court had to consider the rights and responsibilities of the parties under the relevant laws and any applicable local council development consents. Additionally, the court needed to assess the quantum of compensation, if any, owed by the respondents to the applicant for the damage caused by the trees.

In delivering its judgment, the court found that the respondents were indeed required to undertake the specified works on their trees. The court reasoned that the maintenance and pruning of the trees, as well as the replacement of the removed tree, were necessary to ensure the safety and amenity of the applicant's property. The court also determined that the compensation amount of $918 was appropriate for the damage caused by the trees. The court ordered the respondents to carry out the works within specified timeframes and to provide the necessary reports and communications as outlined in the orders.

The court made several specific orders in favour of the applicant. The respondents were required to compensate the applicant within 14 days and to engage qualified arborists to prune and remove trees within 30 days. If Tree 3 was not removed, further assessments and works were mandated within specified timeframes. The works were to comply with relevant Australian standards and safety guidelines. The respondents were also required to give the applicant notice of the works and to allow access to their property for the completion of the works. The exhibits were returned, except for Exhibit A.

Orders

Orders of the court

The Court orders:

(1) The application is granted to the extent of the following orders (trees numbered as per the application Form H (in Exhibit A).

(2) Within 14 days of the date of these orders, the respondents are to pay the applicant compensation for damage of $918.

(3) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to carry out the following works within 30 days of the date of these orders:

(a) Prune Trees 1, 2, 4 and 6 to

(i) remove dead branches greater than 25 mm in diameter;

(ii) reduce overextended branches above the applicant’s property by pruning them back to suitable lateral branches or to their branch collars, removing no more than 20% of live crown mass;

(iii) remove broken branches; and

(iv) remove any other branches identified as hazardous during the works.

(b) Remove Tree 5.

(4) Within 90 days of the date of these orders, the respondents are to plant, at least one metre from any boundary, a native tree that will reach a height of at least 8 metres at maturity.

(5) If Tree 3 is not removed (as permitted by Georges River Council’s Development Consent for DA2022/0605) within 30 days of the date of these orders, the respondents are to:

(a) Engage a suitably insured and qualified (minimum AQF level 3) arborist to prune Tree 3 within 60 days of the date of these orders to

(i) remove dead branches over the applicant’s property;

(ii) provide at least 1 metre clearance between the applicant’s property and all tree branches; and

(iii) remove any other branches identified as hazardous during the works.

(b) Engage a suitably qualified arborist (minimum AQF level 5) within 60 days of the date of these orders to carry out an assessment of structural integrity at the stem cavity using sonic tomography, resistance drilling, or another suitable method, and to provide a written report with recommendations to mitigate identified risks with timeframes specified for any works.

(d) Engage a suitably qualified arborist to carry out all works recommended in the report from Order 5(b) within the specified timeframes.

(6) Works in Orders (3) and (5) 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’.

(7) The respondents are to give the applicant 7 days notice of all works in Orders (3) and (5).

(8) The applicant is to allow any access required for completion of the works in Orders (3) and (5) during reasonable hours of the day.

(9) The exhibits are returned, other than Exhibit A.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Badolato v Ware [2025] NSWLEC 1704
Hearing dates:	26 June 2025
Date of orders:	26 September 2025
Decision date:	26 September 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted to the extent of the following orders (trees numbered as per the application Form H (in Exhibit A). (2) Within 14 days of the date of these orders, the respondents are to pay the applicant compensation for damage of $918. (3) The respondents are to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to carry out the following works within 30 days of the date of these orders: (a) Prune Trees 1, 2, 4 and 6 to (i) remove dead branches greater than 25 mm in diameter; (ii) reduce overextended branches above the applicant’s property by pruning them back to suitable lateral branches or to their branch collars, removing no more than 20% of live crown mass; (iii) remove broken branches; and (iv) remove any other branches identified as hazardous during the works. (b) Remove Tree 5. (4) Within 90 days of the date of these orders, the respondents are to plant, at least one metre from any boundary, a native tree that will reach a height of at least 8 metres at maturity. (5) If Tree 3 is not removed (as permitted by Georges River Council’s Development Consent for DA2022/0605) within 30 days of the date of these orders, the respondents are to: (a) Engage a suitably insured and qualified (minimum AQF level 3) arborist to prune Tree 3 within 60 days of the date of these orders to (i) remove dead branches over the applicant’s property; (ii) provide at least 1 metre clearance between the applicant’s property and all tree branches; and (iii) remove any other branches identified as hazardous during the works. (b) Engage a suitably qualified arborist (minimum AQF level 5) within 60 days of the date of these orders to carry out an assessment of structural integrity at the stem cavity using sonic tomography, resistance drilling, or another suitable method, and to provide a written report with recommendations to mitigate identified risks with timeframes specified for any works. (c) Provide a copy of the report from Order 5(b) to the applicant within 7 days of obtaining the report. (d) Engage a suitably qualified arborist to carry out all works recommended in the report from Order 5(b) within the specified timeframes. (6) Works in Orders (3) and (5) 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’. (7) The respondents are to give the applicant 7 days notice of all works in Orders (3) and (5). (8) The applicant is to allow any access required for completion of the works in Orders (3) and (5) during reasonable hours of the day. (9) The…