Baird v Piper

[2025] NSWLEC 1272

Land and Environment Court

New South Wales

Medium Neutral Citation:

Baird v Piper [2025] NSWLEC 1272

Hearing dates:

26 March 2025

Date of orders:

26 March 2025

Decision date:

26 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is approved to the extent of the following orders.

(2)   For as long as the trees remain, the respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove any dead and dying fronds from Trees 1–3 in September each year, beginning September 2025.

(3)   The works in Order (2) must be done in accordance with AS 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring palm trees – risk of damage or injury – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 3, 6, 7, 9, 10, 12

Texts Cited:

Australian Standard, AS 4373:2007 ‘Pruning of amenity trees’ (March 2007)

Inner West Tree Management Development Control Plan 2023

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (July 2016)

Category:

Principal judgment

Parties:

Spencer Baird (Applicant)
Margaret Piper (Respondent)

Representation:

Counsel:
S Baird (Self-represented) (Applicant)
M Piper (Self-represented) (Respondent)

File Number(s):

2025/14033

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Three palms grow on Margaret Piper’s Lilyfield property: a queen palm (Syagrus romanzoffiana) and two Bangalow palms (Archontophoenix cunninghamiana). Her neighbour, Spencer Baird, is concerned that falling fronds will damage his property or injure someone on his land. He has applied to the Court seeking orders for Ms Piper to regularly maintain the palms or to remove them.

2. The hearing took place onsite, allowing the Court to observe the palms and both properties. I rely on my own arboricultural expertise and experience in making this decision. Both parties were self-represented. I note here at the outset of this judgment that both parties wrote and filed with the Court lengthy responses to each other’s written material, and responses to responses ad nauseam. Most of the words written are ultimately irrelevant to this decision and their nature can at best be described as petty. I deal here only with facts and submissions that are relevant within the jurisdiction of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act).

Framework for this decision

3. Mr Baird’s parents own the property he occupies. For the purposes of the Trees Act, an owner of land includes the occupier of the land (s 3). The property adjoins Ms Piper’s property. Mr Baird is able to make the application under s 7 of the Trees Act. The orders he seeks are orders the Court can make at s 9 of the Trees Act.

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

• Has the applicant made a reasonable effort to reach agreement with the respondent and given the required notice of the application: s 10(1)(a) of the Trees Act?

• For each tree, 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)?

• How should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?

Reasonable effort to reach agreement

5. The trees have been a topic of debate between the parties, verbally and via email. The relationship between these neighbours is sour. It was apparent to them, and to the Court at the hearing, that there is little chance they would agree on an outcome. I am satisfied that Mr Baird made a reasonable effort to reach agreement, and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

6. All three palms are mature, healthy and 12–13 metres tall. They are close to the common boundary with palm fronds overhanging both properties. When fronds of the queen palm (Tree 1) die, they usually stay attached to the stem for months or even years, whereas dead or dying fronds of the Bangalow palms (Trees 2 and 3) are shed naturally.

Damage

7. Mr Baird provided numerous photographs of fallen palm fronds. His family has owned his property since 2012, adding an extension at the rear in 2017. A frond that fell from one of the Bangalow palms damaged the clothesline in Mr Baird’s back yard. I am satisfied from the photographs that the frond damaged the clothesline when it fell from the tree.

8. Mr Baird submitted that a frond from the queen palm broke a light under his eave. Photographs show some broken glass on the ground but do not clearly show damage to the light. Mr Baird sounded unsure when asked to point out which of three lights in a photograph was the broken one. I can not be satisfied to the extent required by s 10(2)(a) of the Trees Act that the tree caused damage to a light.

9. Mr Baird submitted that a frond from the queen palm broke a slate roof title. Photographs show the damaged roof tile but no palm frond on the roof. Mr Baird stated that the damage occurred in 2017, but the broken tile had not been repaired at the time of the hearing. I observed other tiles that are well away from the queen palm were also damaged, perhaps by weather or deterioration with age. I can not be satisfied that a frond of the queen palm damaged Mr Baird’s roof.

10. I am satisfied to the extent required at s 10(2)(a) of the Trees Act that a frond falling from either Tree 2 or Tree 3 caused damage to Mr Baird’s clothesline. I am not satisfied that any of the palms have caused other damage to his property. Given the frequency of fronds falling from the trees, I am satisfied that any of the palms might cause damage in the near future, even if that damage is only to a roofing tile, the clothesline, or the fence. Mr Baird referred repeatedly to the risk of fronds falling and damaging gas pipes and heating equipment at the side of his house near the queen palm. No damage has been caused to these parts of his property in the years he has lived here, and I find it unlikely that such damage will occur in the near future.

Injury

11. Mr Baird submitted that the trees are a high risk to people. A frond recently fell close to a family member. The fronds are heavy enough to cause some injury. They fall into his back yard and onto an access path alongside his dwelling. I note that in the 13 years his family has owned the property, nobody has been injured. He argued that this is just very lucky. To my mind, the risk of injury is relatively low, so that I cannot be satisfied to the extent required at s 10(2)(b) of the Trees Act that the trees are likely to cause injury to a person.

Consideration of relevant matters

12. The three palms are likely to cause damage to the applicant’s property in the near future, minor though that damage may be. Before making any orders, the Court must consider the matters at s 12 of the Trees Act. The s 12 matters that are relevant to this decision are discussed below.

13. The three palms are close to the boundary. Fronds that overhang the common boundary fall periodically onto Mr Baird’s property.

14. Inner West Council’s consent would be required to remove the Bangalow palms but not the queen palm, which is in a table of exempt species in the Inner West Tree Management Development Control Plan 2023. Council consent would not be required to remove dead fronds from the palms or to remove up to 10% of a palm’s canopy annually by removing fronds with a diameter of less than 100 millimetres.

15. Ms Piper submitted that the Baird family created the risk by extending their dwelling, by placing infrastructure near the queen palm and by placing a seat and clothesline beneath the Bangalow palms. Before these changes the risk was low. I accept this is so, but it does not appear that the Baird family acted unreasonably by wishing to use this part of their now small garden. This does not shift the responsibility for the risk or its mitigation to the applicant.

16. The financial value of any damage likely to be caused by the palms is relatively low, but equally the cost of preventing this by regular pruning would also be relatively low. Ms Piper submitted that she engages, or will engage, an arborist to remove dead fronds from the queen palm when needed, so adding the two Bangalow palms to this maintenance procedure should not be onerous. Therefore, I find it reasonable that orders be made for Ms Piper to have the palms de-fronded at regular intervals. Mr Baird submitted that monthly maintenance is required, but this is unnecessary. I find that annual pruning would be reasonable. The Baird family is likely to use their garden in summer more than winter, so pruning in spring will minimise the risk of injury that concerns Mr Baird. Pursuant to s 6 of the Trees Act, Council consent is not required to carry out the works ordered below. Ms Piper stated that she does not require access to Mr Baird’s property to carry out the works.

Orders

17. The Court orders:

1. The application is approved to the extent of the following orders.

2. For as long as the trees remain, the respondent is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove any dead and dying fronds from Trees 1–3 in September each year, beginning September 2025.

3. The works in Order (2) must be done in accordance with AS 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 28 April 2025