The Owners – Strata Plan No 58036 v The Estate of William Hutchinson

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — damage to property — ex parte hearing — zoning of land — orders for tree removal

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 4, 6, 7, 8, 9, 10, 12
Sydney Development Control Plan 2012
Sydney Local Environmental Plan 2012
Trees (Disputes Between Neighbours) Regulation 2024 (NSW)

Cases Cited: Schutz v Kotsis [2010] NSWLEC 1332
The Owners – Strata Plan No. 58036 v The Estate of William Hutchinson [2025] NSWLEC 76

Texts Cited: NSW Department of Planning, Equivalent zone tables, 2022
Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category: Principal judgment

Parties: The Owners – Strata Plan No 58036 (Applicant)
The Estate of William Hutchinson (Respondent)

Representation: Counsel:
B Collingwood (Applicant)
No appearance (Respondent)
Solicitors:
Bannermans Lawyers (Applicant)

File Number(s): 2025/214965

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** On a narrow strip of land (‘strip of land’) between buildings at 11–17 Wyndham Street, Alexandria (‘applicant’s land’) and 19–25 Wyndham Street, Alexandria, a Chinese hackberry (Celtis sinensis) (‘the tree’) has grown up against the building on the applicant’s land, damaging a wall on their land. The Owners – Strata Plan No 58036 (‘the applicant’) applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for the tree to be removed and for compensation for the costs of repairing their wall.

2. The strip of land belonged to William Hutchinson, who died on 26 July 1846. In his will, Mr Hutchinson left other properties and assets to various beneficiaries but did not identity or mention the strip of land. According to the NSW Land Registry Services, the strip of land is still owned by the Estate of William Hutchinson (‘the respondent’). For this reason, the applicant applied by Notice of Motion for the Court to waive the usual requirement at s 8(1)(a) of the Trees Act for giving the respondent notice of the application. The applicant also sought an order for the matter to proceed ex parte. On 17 July 2025, Beasley J made the following orders (see The Owners – Strata Plan No. 58036 v The Estate of William Hutchinson [2025] NSWLEC 76 (SP 58036) at [13]):

3. An order pursuant to s 8(3) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) waiving the requirement to give notice to the owner of the land on which the tree the subject of this Application is situated.

4. An order that the hearing of the Applicant’s Application is to proceed ex parte.

5. An order that the proceedings be listed for directions and allocation of a final hearing date in the Court’s directions list on Tuesday 22 July 2025.

6. I then heard the matter ex parte and gave orders at an onsite hearing on 25 July 2025. Due to the lack of any active respondent, Ms Collingwood, for the applicant, amended the orders sought to allow the applicant to access the strip of land to remove the tree; the compensation order was not pressed. Dermot Nolan, an engineer, and Daniel Leonard, an arborist, both gave oral evidence at the hearing. Their written reports were included along with the applicant’s other evidence in Exhibit A.

Matters to be determined

4. The Trees Act applies only to trees on certain land: s 4 of the Trees Act. Whether this includes the subject tree is the first issue to be determined.

5. The orders that the applicant seeks are ones the Court can make at s 9 of the Trees Act. The Court must not make an order unless satisfied of matters at s 10. The applicant has made a reasonable effort to locate the owner of the strip of land but has no chance of reaching agreement with them (s 10(1)(a) of the Trees Act). The requirement to give the respondent notice of the application has been waived (s 10(1)(b)). The Court must be satisfied in these proceedings that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property (s 10(2)(a)).

6. Finally, the Court must consider matters at s 12 of the Trees Act before determining the application.

The Trees Act applies to this tree

7. The applicant seeks orders to remedy damage to property on their land as a consequence of a tree on adjoining land. The tree must be one ‘to which this Act applies’: s 7 of the Trees Act.

8. At s 4, the Trees Act applies only to trees on certain land.

(1) This Act applies only to trees situated on the following land—

(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,

(b) any land of a kind prescribed by the regulations for the purposes of this section.

(2) This Act does not apply to trees situated on—

(a) any land that is vested in, or managed by, a council, or

(b) any land of a kind prescribed by the regulations.

…

9. The strip of land on which the tree is situated is zoned MU1 Mixed Use under the Sydney Local Environmental Plan 2012 (Sydney LEP). It is not vested in or managed by Sydney City Council (‘Council’). The Trees (Disputes Between Neighbours) Regulation 2024 (NSW) does not prescribe any kind of land as either included or excluded. Therefore, for the Court’s jurisdiction to apply, with the purpose of the zone in mind, the mixed-use zone must have the substantial character of one of the zones designated at s 4(1)(a) of the Trees Act. The Court has previously found a zone not designated at s 4(1)(a) to have the substantial character of a designated zone: for instance, see Schutz v Kotsis [2010] NSWLEC 1332 at [5].

10. Without determining this issue in the current proceedings, Beasley J considered it at [6]-[10] of SP 58036, concluding at [10]:

While it would appear, based on the purposes of the MU1 Mixed Use Zone, and the development that is permissible with consent, that the zone has the substantial character of a zone designated “business” – hence making the Application within the jurisdiction of the Trees Act – resolution of that issue can be left for the final hearing.

11. I concur with Beasley J. The NSW Department of Planning’s (2022) ‘Equivalent zone tables’ show on p 52 that MU1 Mixed Use zone replaced the business zone B4 Mixed Use in the Sydney LEP. Prior to 26 April 2023, the Sydney LEP’s B4 Mixed Use zone had the following objectives (my emphasis in bold):

1 Objectives of zone

• To provide a mixture of compatible land uses.

• To integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

• To ensure uses support the viability of centres.

2 Permitted without consent

Home occupations

3 Permitted with consent

Boarding houses; Centre-based child care facilities; Commercial premises; Community facilities; Educational establishments; Entertainment facilities; Function centres; Hotel or motel accommodation; Information and education facilities; Medical centres; Oyster aquaculture; Passenger transport facilities; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Roads; Seniors housing; Shop top housing; Tank-based aquaculture; Any other development not specified in item 2 or 4

4 Prohibited

Extractive industries; Heavy industrial storage establishments; Heavy industries; Pond-based aquaculture

12. The objectives of the current MU1 Mixed Use zone are (my emphasis in bold):

1 Objectives of zone

• To encourage a diversity of business, retail, office and light industrial land uses that generate employment opportunities.

• To ensure that new development provides diverse and active street frontages to attract pedestrian traffic and to contribute to vibrant, diverse and functional streets and public spaces.

• To minimise conflict between land uses within this zone and land uses within adjoining zones.

• To encourage business, retail, community and other non-residential land uses on the ground floor of buildings.

• To ensure land uses support the viability of nearby centres.

• To integrate suitable business, office, residential, retail and other land uses in accessible locations that maximise public transport patronage and encourage walking and cycling.

2 Permitted without consent

Home occupations

3 Permitted with consent

Amusement centres; Boarding houses; Car parks; Centre-based child care facilities; Commercial premises; Community facilities; Entertainment facilities; Function centres; Information and education facilities; Light industries; Local distribution premises; Medical centres; Oyster aquaculture; Passenger transport facilities; Places of public worship; Recreation areas; Recreation facilities (indoor); Registered clubs; Respite day care centres; Restricted premises; Shop top housing; Tank-based aquaculture; Tourist and visitor accommodation; Vehicle repair stations; Any other development not specified in item 2 or 4

4 Prohibited

Extractive industries; Heavy industrial storage establishments; Heavy industries; Pond-based aquaculture

13. The overlap of the two zones’ objectives and their permitted developments is such that the MU1 Mixed Use zone has the substantial character of the business zone that it replaced.

The tree has caused damage and is likely to cause damage

14. The Chinese hackberry is approximately 12 m tall with a stem diameter of around 38 cm (Mr Leonard’s report). It probably grew from a seed set down by a bird or the wind. It has grown against the wall of the applicant’s basement carpark. Mr Leonard observed that the tree’s structural roots were “…growing between the wall of the private car park and a large concrete boulder… pushing the wall horizontally as they expand in size.”

15. The blockwork wall is cracked and displaced. Mr Nolan identified the tree as the cause of damage to the wall, noting that the wall is “unstable and at risk of collapsing” and recommended removing the tree before any repair works are attempted.

16. My observations during the onsite hearing confirmed these findings. The tree has damaged the applicant’s blockwork wall. If the tree is not removed, it is likely to cause further damage in the near future.

The tree must be removed

17. As Mr Nolan concluded, the wall cannot be repaired until the tree is removed. I have considered the matters at s 12 of the Trees Act. The tree provides some minor ecosystem services, but has little environmental or social benefit beyond that.

18. Being a Chinese hackberry more than 10 m tall, the tree’s removal would ordinarily require a permit from Council: Provision 3 of s 3.5.3 of the Sydney Development Control Plan 2012. No such permit has been obtained. Pursuant to s 6(3) of the Trees Act, the applicant is not required to obtain a permit to carry out the works ordered below.

19. The tree is the primary cause, perhaps the only cause, of damage to the wall. Pruning or other works cannot avoid the need for its removal. During the journey that resulted in this application to the Court and its final determination, the applicant has taken all reasonable steps to prevent further damage to the wall.

20. Mr Leonard suggested that the tree should be poisoned before it is removed to prevent it regrowing, so I have added to the proposed orders an order for access for that purpose. The applicant will also require access to the adjoining land to remove the tree and to carry out repair works.

Orders

21. The Court orders:

22. The application is granted.

23. The applicant is to engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to remove the tree within 30 days of the date of these orders.

24. The applicant may engage and pay for a suitably insured and qualified (minimum AQF level 3) arborist to poison the tree within 30 days of the date of these orders.

25. The works in Orders (2) and (3) must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

26. The applicant is allowed all access required for completion of the works in Orders (2) and (3), and for repairing their basement wall, during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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