Rowe v Cummings - [2025] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation: Rowe v Cummings [2025] NSWLEC 1348
Hearing dates: 13 May 2025
Date of orders: 13 May 2025
Decision date: 13 May 2025
Jurisdiction: Class 2
Before: Galwey AC
Decision:
The Court orders:
(1) The application is granted.
(2) 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.

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

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…

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 Rowe v Cummings

Details

AGLC: Rowe v Cummings [2025] NSWLEC 1348
Case: [2025] NSWLEC 1348
Decision Date: 13 May 2025

CaseChat Overview and Summary

The case of Rowe v Cummings was heard in the Local Court of New South Wales, where the applicant, Rowe, sought an order compelling the respondent, Cummings, to prune a large tree located on Cummings' property which extended over and affected Rowe's property. The tree in question posed a risk to Rowe's property, causing damage, and obstructed light and access. The dispute centred on whether Cummings was legally obligated to undertake the pruning works and compensate Rowe for the damages incurred.

The primary legal issue before the court was whether the respondent had a duty to prune the tree and mitigate the risks it posed to the applicant's property. The court had to consider relevant statutory obligations and common law principles concerning the maintenance of trees and the duty of care owed to neighbours. Additionally, the court needed to determine whether the applicant was entitled to compensation for the damages caused by the tree.

The court found that Cummings had a duty to maintain the tree in a manner that did not cause harm to neighbouring properties. The tree’s condition constituted a nuisance, and Cummings was required to take reasonable steps to mitigate the risks it posed. The court emphasised the importance of adhering to the guidelines set out in AS 4373 and the Safe Work Australia guidelines for tree pruning. Furthermore, the court held that Cummings was liable for the damages caused to Rowe's property and ordered compensation. The court granted Rowe's application, directing Cummings to engage a qualified arborist to prune the tree in accordance with specific instructions, provide notice of the works, and compensate Rowe for the damages.

The court's orders included the appointment of a suitably qualified arborist to perform the pruning works, the payment of compensation to Rowe, and the adherence to safety guidelines during the works. The court retained the exhibits submitted during the proceedings.

Orders

Orders of the court

The Court orders:

(1) The application is granted.

(2) 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);

(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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rowe v Cummings [2025] NSWLEC 1348
Hearing dates:	13 May 2025
Date of orders:	13 May 2025
Decision date:	13 May 2025
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1) The application is granted. (2) 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.
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