Hunt v Sidhu

[2024] NSWLEC 1050

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hunt v Sidhu [2024] NSWLEC 1050

Hearing dates:

12 February 2024

Date of orders:

12 February 2024

Decision date:

12 February 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – risk of damage and injury from two neighbouring trees – whether the application was served on the respondent – trees partly removed prior to the hearing

Legislation Cited:

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

Category:

Principal judgment

Parties:

Derek Hunt (First Applicant)
Karen Hunt (Second Applicant)
T S Sidhu (First Respondent)
M A Sidhu (First Respondent)

Representation:

D Hunt (Self-represented) (Applicants)
No appearance (Respondents)

File Number(s):

2023/312787

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Tall native trees grow on an adjoining property to the west of the Woolgoolga property belonging to Derek and Karen Hunt (the applicants). The applicants became concerned that two of those trees might fall onto their property, damaging either their dwelling or a shed. They applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the removal of both trees. The owners of the adjoining property are identified in the application as T S Sidhu and M A Sidhu (the respondents). The applicants have known a person by the name of Major Sidhu as the owner of the property. Major Sidhu, who came to the onsite hearing, claims not to own the property, having sold it to relatives, apparently those named as the respondents. Major Sidhu owns a nearby property, but seems to have some oversight for several properties held by family members. Major Sidhu had no authority to act as agent for the respondents, who did not appear. The matter was heard ex parte.

Framework for this decision

2. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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, or

(b) is likely to cause injury to any person.

3. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

4. Mr Hunt, under the impression that Major Sidhu owned the land on which the trees grow, brought the trees to his attention in 2023. Mr Sidhu at first agreed to remove the trees, before saying it was Mr Hunt’s responsibility. He then wrote to the Court stating that he did not own the land. Mr Hunt was unable to negotiate an outcome. If he was not speaking directly with the respondents, it seems clear that Major Sidhu was communicating with them. I am satisfied that the applicants made a reasonable effort to reach agreement.

Risk of damage or injury

5. Circumstances have changed since the applicants commenced proceedings. Prior to the hearing, a contractor under Major Sidhu’s supervision removed the branches and upper stem of Tree 1 (a bloodwood), leaving just its stem, and removed Tree 2 (a tallowwood) to just above ground level. At the time of making their application, the applicants were concerned that Tree 1 might fall onto their dwelling and that Tree 2 might fall onto their shed. Tree 1 had three stems, the largest of which has large hollow areas with signs of termite activity. Around 8 to 10 metres of that stem remains standing, while the remainder of the tree has been felled. Mr Hunt submitted that the remaining stem of Tree 1 might still fall onto his property. Although it would no longer reach his dwelling, having had its top removed, it might damage the boundary fence and a small tree in the applicants’ garden if it fell that way. Their grandchild plays in that area. Mr Hunt submitted that Tree 2 is no longer dangerous.

6. Having inspected Tree 1, I am not satisfied that it is likely to cause damage or injury. Although it is significantly hollow in some parts, it supported, until very recently, a large, tall crown and withstood the forces of wind on the crown. The remaining stem is very upright and will experience very little in the way of lateral loading. I find it is unlikely to fail in the near future. The risk of damage or injury has largely been removed. There is no cause for making orders pursuant to s 10(2) of the Trees Act. As a result, the application is refused.

Orders

7. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibits A and B.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 February 2024