Sallway v Kapoor

[2025] NSWLEC 1386

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sallway v Kapoor [2025] NSWLEC 1386

Hearing dates:

22 May 2025

Date of orders:

29 May 2025

Decision date:

29 May 2025

Jurisdiction:

Class 2

Before:

Washington C

Decision:

The Court orders:

(1) The application is granted to the following extent.

(2) At the respondents’ cost, the Eucalyptus saligna at 81 Greenwich Road, Greenwich is to be pruned within 45 days of the date of these orders to undertake the removal of all deadwood in excess of 10 mm, remedial pruning of branch stubs, and removal of any damaged and or dangerous branches. No more than 10% of the canopy is to be removed, and the works are to be undertaken by an AQF level 3 arborist with a minimum of 5 years’ experience as a climbing arborist. As removal of live foliage reduces tree health, any requirement to prune epicormic growth shall be based on this arborist’s assessment of branch safety during the works, and only undertaken as necessary.

(3) 12 months after this initial pruning, at the respondents’ cost, the tree is to be subject to a ground-based risk assessment by a qualified AQF level 5 arborist, and any required pruning resulting from this assessment is to be undertaken by an AQF level 3 arborist, within 45 days of inspection.

(4) Every subsequent 24 months or after major storms, the risk assessment and pruning, as per order (3), shall be repeated at the respondents’ cost.

(5) All pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.

(6) All arborists must have appropriate insurances, and works must be in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.

(7) The respondents are to pay the applicant compensation for damage to the applicant’s property in the sum total of ($2408) within 90 days of the making of these orders.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2 application – overhanging tree – damage to property – risk of injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12, 13

Texts Cited:

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

Category:

Principal judgment

Parties:

Andrew Sallway (Applicant)
Martina Kapoor (First Respondent)
Raan Kapoor (Second Respondent)
Lane Cove Council (Interested Party)

Representation:

Counsel:
A Sallway (Self-represented) (Applicant)
C Gough (Solicitor) (First and Second Respondents)
J Schmidt Liermann (Solicitor) (Third Respondent)

Solicitors:
Storey Gough Solicitors (First and Second Respondents)
Schmidt-Liermann Lawyers (Interested Party)

File Number(s):

2025/56174

Publication restriction:

Nil

JUDGMENT

1. Andrew Sallway has applied to the Court seeking orders relating to a large Eucalyptus saligna (Blue Gum) (the tree) on a neighbouring property. The application has been made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), under which Mr Sallway requests the Court make orders to remove the tree, and for the respondents, Martina Kapoor and Raan Kapoor, to pay damages for the destruction of a shed, trampoline and retaining wall, and to replace or repair an existing fence.

2. The tree is located on the Kapoor’s property at 81 Greenwich Road, Greenwich, approximately 800mm away from the rear boundary fence that divides the Kapoor’s and Mr Sallway’s property at 24 Carlotta Street, Greenwich. It is a mature tree, estimated to be over 30 metres tall, with a canopy that covers the majority of both the applicant’s and respondent’s rear gardens, and just extends into other neighbouring gardens. In the course of the hearing, Mr Kapoor confirmed that the respondents support Mr Sallway’s request to remove the tree.

3. The Trees Act sets out matters of which the Court must be satisfied before making an order at s 10. Firstly, I must be satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Mr Sallway states that he has requested, via the Kapoor’s estate agent, for the tree to be pruned or removed on several occasions since 2020, and that he provided the draft Tree Dispute Claim to the estate agent. This was substantiated by the selection of emails received as Exhibit C, and from this I am satisfied that reasonable effort has been made in accordance with s 10(1)(a).

4. I note also that, pursuant to s 10(1)(b) of the Trees Act, adequate notice has been given to owners of the affected land, and also to Lane Cove Council who are appearing before the Court in this matter as an interested party pursuant to s 13 of the Trees Act.

5. I then must be satisfied that the tree concerned 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 (Trees Act s 10(2)).

6. Mr Sallway claims that falling branches have damaged two trampolines, a shed, and some lattice above the side boundary fence. Undated photographic evidence from Mr Sallway’s application shows damage to both the trampoline and the shed from tree branches. He also claims that the tree growth is damaging the existing rear boundary fence between the two properties, and a timber garden retaining wall that runs adjacent to the rear boundary wall.

7. I accept from the evidence that falling branches from this tree have caused damage to the applicant’s property in the past- specifically two trampolines and a garden shed, meeting the final pre-condition to the making of an order under s 10(2) of the Trees Act. Despite this, no evidence was provided that damage has occurred to any retaining wall or fence as a result of this tree, and I do not accept that it is conclusive that growth of this tree is the sole cause of this.

8. Before determining this application under Pt 2 of the Trees Act, I must consider the matters listed at s 12. From this I note that the tree is a large mature Blue Gum that has significance within the local landscape. Eucalyptus saligna is a native species that is endemic to the local area, and is classified as part of a threatened ecological community of Blue Gum High Forest. Lane Cove Council submit that the tree has significance within the LGA in terms of amenity, ecology and biodiversity, and do not support its removal on these grounds.

9. This tree is not otherwise directly located within a native vegetation community, and is positioned within an urban rear garden. It is adjacent to a tall palm on the same property, and although one branch of the tree may be starting to impact the palm, the palm is not the subject of these proceedings and does not justify the removal of this tree.

10. Mr Kapoor submits that the tree has not received any maintenance since 2017. Mr Sallway has provided photographic evidence of large branches that have fallen from this tree into his garden from 2020 onwards, which he submits are solely from the Blue Gum and not from the Red Mahogany within their own property.

11. In response to an application to remove the tree from the Kapoors (Ex R1) and following the filing of this appeal with the Court, Lane Cove Council have determined Tree Permit Application SR.13206. In this determination, the Council refused the application to remove the tree but granted permission to selectively prune the tree to remove epicormic growth, deadwood and remedial pruning of branch stubs.

12. Noting the visible deadwood within the canopy, but also the apparent good health of the tree as supported by the evidence of the Council’s arborist in Ex R1, it is likely that such maintenance could have mitigated the frequency and size of falling branches, the damage to Mr Sallway’s property, and the perceived risk to users of the garden. To mitigate the potential for further branches to fall, and noting the urban environment within which the tree is located, it is my considered opinion that judicious pruning and regular assessment under the guidance of a suitably qualified arborist could manage the tree into the future, maintaining this valuable environmental asset to the end of its useful life expectancy, whilst also managing any risk to both the Sallways and the Kapoor’s property and occupants. Removal of the tree at this point would be disproportionate and unnecessary, noting both the relatively light damage to property that has occurred to date and the environmental significance of the tree.

13. Pursuant to s 9 of the Trees Act, the Court has powers to make orders as follows:

‘9   Jurisdiction to make orders

(1)  The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2)  Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may—

(a)  require the taking of specified action to remedy damage to property, or

(b)  require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or

(c)  require the taking of specified action to prevent injury to any person, or

(d)  require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or

(e)  authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or

(f)  authorise the applicant concerned to take specified action to prevent injury to any person, or

(g)  authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or

(h)  require the payment of costs associated with carrying out an order under this section, or

(i)  require the payment of compensation for damage to property, or

(j)  require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.’

14. In the hearing, Mr Kapoor proposed alternative sums for compensation, which Mr Sallway accepted. These were $399 and $209 for the purchase and installation of the trampoline respectively, and $1800 for replacement of the shed.

15. Accordingly, to prevent future damage to property, and in compensation for damage to the trampoline and shed, I make the following orders.

16. The Court orders:

1. The application is granted to the following extent.

2. At the respondents’ cost, the Eucalyptus saligna at 81 Greenwich Road, Greenwich is to be pruned within 45 days of the date of these orders to undertake the removal of all deadwood in excess of 10 mm, remedial pruning of branch stubs, and removal of any damaged and or dangerous branches. No more than 10% of the canopy is to be removed, and the works are to be undertaken by an AQF level 3 arborist with a minimum of 5 years’ experience as a climbing arborist. As removal of live foliage reduces tree health, any requirement to prune epicormic growth shall be based on this arborist’s assessment of branch safety during the works, and only undertaken as necessary.

3. 12 months after this initial pruning, at the respondents’ cost, the tree is to be subject to a ground-based risk assessment by a qualified AQF level 5 arborist, and any required pruning resulting from this assessment is to be undertaken by an AQF level 3 arborist, within 45 days of inspection.

4. Every subsequent 24 months or after major storms, the risk assessment and pruning, as per order (3), shall be repeated at the respondents’ cost.

5. All pruning shall conform with the guidelines of AS 4373:2007 Pruning of amenity trees.

6. All arborists must have appropriate insurances, and works must be in compliance with Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016. If required for any of these works, access is to be provided by the applicant, subject to notice of at least 48 hours, and entry only during reasonable working hours.

7. The respondents are to pay the applicant compensation for damage to the applicant’s property in the agreed sum total of ($2408) within 90 days of the making of these orders.

E Washington

Commissioner of the Court

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Decision last updated: 29 May 2025