Huff v Ayres

[2024] NSWLEC 1833

Land and Environment Court

New South Wales

Medium Neutral Citation:

Huff v Ayres [2024] NSWLEC 1833

Hearing dates:

Conciliation conference on 26 November 2024

Date of orders:

20 December 2024

Decision date:

20 December 2024

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Court orders that:

(1) The tree be removed within sixty (60) days from the date of these Orders.

(2) The costs of the tree removal (Order (1)) shall be borne by the applicants.

(3) The applicant and respondent will each grant access as required to their respective properties to enable the contractor to carry out the work for the purpose of Order 1.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – agreement between the parties – conciliation conference – orders – dangerous tree – potential for dangerous tree to cause damage

Legislation Cited:

Land and Environment Court Act 1979, s 34
Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12, 14A

Category:

Principal judgment

Parties:

Michael Andrew Huff (First Applicant)
Susan Margaret Huff (Second Applicant)
Margaret Mary Ayres (Respondent)

Representation:

Counsel:
J Bryant (Applicants)
L Ayres (Respondent)

Solicitors:
Shotters Lawyers (Applicants)
Babcock & Brown Australia Pty Ltd (Respondent)

File Number(s):

2024/338501

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Mr and Mrs Huff and Mrs Ayres share a rear boundary between their properties, located in New Lambton. Mrs Ayres’ property (6 Adina Place New Lambton) is located at a higher elevation than Mr and Mrs Huff’s property and this is where the tree is situated. A child care centre is in operation on the Huff’s property at 5 Hawkins Street New Lambton.

2. Despite a listing for a final hearing made for 9 December 2024 the parties were happy to continue negotiating an outcome of the dispute between themselves prior to this hearing date.

3. An application under Pt 2 of the Trees Act was submitted (File No. 24/338501) with the Land and Environment Court (the Court) on 15 October 2024, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking removal of Mrs Ayres's Casuarina (the Tree) to remedy a claimed potential for the tree to fall and cause damage to persons or property (Mr and Mrs Huff's property).

4. Directions were made by the Registrar of the Court, for the application to be heard at a conciliation conference under the jurisdiction of the Land and Environment Court Act 1979 (LEC Act) under s 34. For the sake of this judgment and in keeping with the parties’ intentions under the terms of their subsequent consent orders, Mr and Mrs Huff are the applicants and Mrs Ayres the respondent.

On site conciliation between the parties

5. The conciliation conference was conducted on-site on 26 November 2024. The Tree, located near the rear boundary of the respondent’s front yard, was inspected from both properties. The applicants were represented by Mr Joe Bryant (solicitor) on site during the conference, and the respondents represented by Mr Luke Ayres (solicitor) by telephone.

6. An Arboricultural Risk Assessment Report prepared by ‘Hugh The Arborist’ dated 11 June 2021 was submitted by the applicants to support their application for tree removal. This report concluded that due to the health and condition of the tree (decay in trunk), the high target area underneath the tree (a child care centre’s outdoor play area) and the lack of mitigation options available to remove the risk, the tree poses a moderate risk with the southern trunk having a ‘probable’ likelihood of failure under usual weather conditions.

7. Having inspected the tree myself, I agree with the conclusions made in the arborist report and concur that the tree should be removed.

8. During the conciliation conference it was agreed by the parties that the tree needed to be removed and to ensure parties would follow through with an agreed decision, both parties agreed to sign a s 34 agreement to formally conclude the dispute.

9. A s 34 agreement signed by both parties was submitted to the court on 29 November 2024.

10. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

11. In this respect, both Mr and Mrs Ayres and Mrs and Mrs Huff (under s 14C(1) of the Trees Act) satisfied their respective requirement to provide at least 21 days’ notice of their applications and the terms of any orders sought.

12. Similarly, both Mr and Mrs Ayres and Mrs and Mrs Huff (under s 14E(1) of the Trees Act) satisfied the requirement to make a reasonable effort to reach agreement with the owner of the land on which the tree or trees is situated.

Matters of which Court must be satisfied before making an order

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property,

13. Given that the trees need only be ‘a’ cause of damage to satisfy the jurisdiction, s 10(2)(a) of the Trees Act is engaged, enlivening my power to make orders under s 9 of the Trees Act, with consideration of elements in s 12. Relevant aspects of s 12 of the Trees Act were addressed within the parties’ negotiations.

14. The conciliation conference was embraced positively by the parties, with agreement reached under s 34(3) of the LEC Act, as to the terms of a decision in the proceedings that was acceptable to the parties.

15. The parties ask me to approve their decision as set out in the s34 agreement before the Court. In general terms, the agreement approves the removal of the tree with the costs borne by the applicants.

16. From their analysis of the site evidence, and the parties’ explanations to me during the conference, the parties conveyed how the requirements of the Trees Act have been satisfied in order to allow the Court to make the agreed orders at [21].

17. I formed an opinion of satisfaction that each of the pre-jurisdictional requirements identified by the parties have been met, for the reasons set out above.

18. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

19. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

20. The Court Orders:

1. The tree be removed within sixty (60) days from the date of these Orders.

2. The costs of the tree removal (Order (1)) shall be borne by the applicants.

3. The applicant and respondent will each grant access as required to their respective properties to enable the contractor to carry out the work for the purpose of Order 1.

P Nichols

Acting Commissioner of the Court

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Decision last updated: 20 December 2024