The Owners - Strata Plan No 71104 v Molloy

[2025] NSWLEC 1255

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

The Owners – Strata Plan No 71104 v Molloy [2025] NSWLEC 1255

Hearing dates:

20 March 2025

Date of orders:

20 March 2025

Decision date:

20 March 2025

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted as per the following orders.

(2) The applicant is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree by 3 August 2025, leaving the lowest one metre of stump in situ (or as otherwise directed by the respondents). The works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. The contracted arborist must remove all debris from the site and leave the respondents’ property in a tidy condition.

(3) The applicant is to give the respondents 7 days’ notice of the works in Order (2).

(4) The respondents are to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

(5) Within 14 days of the date of these orders, the respondents are to pay the applicant $1,250 via electronic transfer.

(6) The applicant shall repair paving in the courtyard of Unit 1 at their own expense.

(7) The applicant is granted liberty to relist should the strata committee fail to approve funds for tree removal costs within 60 days of the date of these orders.

(8) The exhibits are returned other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring trees – repairs to property – tree removal – who should pay for the works – the tree was there first

Legislation Cited:

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

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:

Canterbury-Bankstown Development Control Plan 2023

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

Category:

Principal judgment

Parties:

The Owners – Strata Plan No 71104 (Applicant)
Jodi Molloy (First Respondent)
Stephen Molloy (Second Respondent)

Representation:

Counsel:
Heather Burke (Agent) (Applicant)
Rainer Fritzsche (Agent) (Applicant)
J Molloy (Self-represented) (First Respondent)
S Molloy (Self-represented) (Second Respondent)

File Number(s):

2024/468617

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: A large Sydney red gum (Angophora costata) grows on the Padstow Heights property belonging to Jodi and Stephen Molloy (the respondents) adjacent to their western side boundary. A strata plan with 10 dwellings was established on the adjoining property to their west more than 20 years ago: The Owners – Strata Plan No 71104 (the applicant). The tree is adjacent to the courtyard of Unit 1 of the strata plan. Over the last few years, the strata committee and the owner of Unit 1 have asked the Molloys to prune or remove the tree due to damage caused by the tree’s roots and the risk of damage or injury from falling branches. The Molloys obtained council consent to remove the tree but, as they had not created the problem, thought the applicant should bear most of the cost of any tree works. Unwilling to pay the cost of tree removal, the applicant arranged and paid for an arborist to prune parts of the tree’s canopy overhanging Unit 1 in July 2024. The applicant then applied to the Court seeking orders for the respondents to remove the tree at the respondents’ cost and to pay the applicant’s costs for paving repairs and the 2024 pruning works, as well as the cost of an arborist report.

2. During the onsite hearing I took some time to observe the tree. I rely on my own arboricultural expertise and experience in making this decision. I also consider the material filed by the parties, including the application and claim, quotes, a report on the tree by arborist Josh Baber, and a copy of Canterbury Bankstown Council’s determination on the Molloys’ tree removal consent application. Ms Burke and Mr Fritzsche represented the applicant as agents; the respondents were self-represented.

Framework for this decision

3. The strata owners have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). Their strata plan shows that courtyards of the dwellings belong to the respective unit owners, other than paved areas. The assumption is that paved areas are therefore common property. As owners of the paved areas, the strata owners can seek orders relating to damage caused by the tree to property on their land.

4. The orders that the applicant seeks are orders the Court can make at s 9 of the Trees Act, other than the orders for reimbursing the cost of the arborist’s report. Commissioners of the Court do not have the power to order costs.

5. 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?

• 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 are 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?

The tree

6. This Sydney red gum is large, mature and healthy. It is approximately 20 metres tall with a stem diameter of approximately one metre. It was present when the adjoining property belonging to the applicant was developed in the early 2000s. Pruning in July 2024 removed most of the western half of the tree’s canopy, leaving it somewhat unbalanced. The tree is close to the common boundary.

Reasonable effort to reach agreement

7. The parties have communicated verbally and via letters. I am satisfied that the strata owners have made a reasonable effort to reach agreement with the Molloys and that the timeframe set down by the Court allowed for the required notice of the application.

Damage or injury caused by the trees

8. On the applicant’s land, between the common boundary and the dwelling of Unit 1, paved steps are supported by timber sleepers. Pavers nearest the tree are lifted significantly in a pattern corresponding with expected root growth, in line with root buttresses at the tree’s base. The steps are becoming hazardous. Based on these observations and relying on my knowledge of tree root growth, I am satisfied that the tree has damaged these steps.

9. The dwelling of Unit 1 is 2.8 metres from the centre of the tree’s stem. Roots seen in soil beneath the dwelling are likely to be from the tree, but have not caused damage. The applicant contends that they are likely to cause damage, but I cannot be satisfied that any damage to foundations is likely in the near future.

10. Following the 2024 pruning, no significant branches remain above Unit 1. Branches are unlikely to fall and cause damage to property on the applicant’s land.

11. Because I find that the tree’s roots have damaged paved steps on the applicant’s land, this element of the application enlivens the Court’s jurisdiction to make orders: s 10(2)(a) of the Trees Act.

Consideration of relevant matters

12. Before making any orders, the Court must consider the matters at s 12 of the Trees Act. I discuss below the s 12 matters that are relevant to my decision.

Location of the tree

13. The tree is close to the common boundary. Its roots grow into the applicant’s property.

Consent requirements

14. Canterbury Bankstown Council (Council) has twice granted consent for removing the tree. The Canterbury-Bankstown Development Control Plan 2023 (the DCP) includes the following exemption in Chapter 2.3 ‘Tree Management’:

Clause 2.5 Despite clause 2.3, Chapter 2.3 of this DCP does not apply to:

1. trees located within 3m of the external wall of an approved dwelling, not including a secondary dwelling. The distance shall be measured from the external wall of the approved dwelling to the centre of the trunk of the tree at 1.4m above ground level…”

15. The centre of the tree’s stem is 2.8 metres from the external wall of Unit 1’s dwelling. The exemption is not conditional on the dwelling being situated on the same property as the tree. Although Council has granted consent for removal of the tree, it appears that Council consent is not required.

Impacts of pruning

16. The 2024 pruning has left the tree with an unbalanced crown. This has not increased the likelihood of tree failure, but has significantly reduced the tree’s amenity value.

17. Roots that are lifting the paved steps are within one metre of the tree. Cutting or damaging these roots would make the tree unstable and increase the likelihood of tree failure. The steps cannot be properly repaired without removing these roots.

The tree’s benefits

18. The tree contributes significantly to local amenity, to the respondents’ landscape, and to the local environment. Its broad crown provides shading, cooling and habitat.

Other factors

19. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black) at [15], the Court established the following tree dispute principle:

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

20. This was a mature tree at the time of development of the applicant’s land. Photographs in evidence indicate that the tree received little in the way of protection during works. Structures including the paved steps were built within the tree’s structural root zone, where woody roots can be expected to increase in girth. The steps were not built in such a way as to withstand this. The damage was both foreseeable and preventable. The Molloys did not cause the damage through any acts or omissions. The tree dispute principle in Black applies here: the applicant will be responsible for repairing their steps.

21. The tree will need to be removed to prevent further damage. Council consent is not required to remove the tree. For reasons set out above, the applicant will also be responsible for the cost of tree removal. As the Molloys submitted, the only cost that should be borne by them relates to pruning to remove hazardous branches above the applicant’s property. The 2024 pruning works conducted by the applicant went well beyond the removal of hazardous branches. The Molloys will reimburse the applicant for only half the cost of the 2024 pruning works.

Orders

22. The Court orders:

1. The application is granted as per the following orders.

2. The applicant is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree within 60 days of the date of these orders by 3 August 2025, leaving the lowest one metre of stump in situ (or as otherwise directed by the respondents). The works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. The contracted arborist must remove all debris from the site and leave the respondents’ property in a tidy condition

3. The applicant is to give the respondents 7 days’ notice of the works in Order (2).

4. The respondents are to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

5. Within 14 days of the date of these orders, the respondents are to pay the applicant $1,250 via electronic transfer.

6. The applicant shall repair paving in the courtyard of Unit 1 at their own expense.

7. The applicant is granted liberty to relist should the strata committee fail to approve funds for tree removal costs within 60 days of the date of these orders.

8. The exhibits are returned other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Amendments

05 June 2025 - Pursuant to orders made on 03 June 2025;
Order (2) in the original orders is amended as follows:

(2) The applicant is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree within 60 days of the date of these orders by 3 August 2025, leaving the lowest one metre of stump in situ (or as otherwise directed by the respondents). The works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’. The contracted arborist must remove all debris from the site and leave the respondents’ property in a tidy condition.

Decision last updated: 05 June 2025