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

Catchwords: NOTICE OF MOTION — Application for matter to proceed ex parte — Unable to effect service — Application granted

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) s 8
Sydney Local Environmental Plan 2012

Category: Procedural rulings

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

Representation: Counsel:
B Collingwood instructed by Mr Chen (Applicant)
No appearance (Respondent)
Solicitors:
Bannermans Lawyers (Applicant)
No appearance (Respondent)

File Number(s): 2025/00214965

Publication restriction: Nil

EX TEMPORE JUDGMENT

1. By Notice of Motion filed on 10 July 2025, The Owners – Strata Plan No. 58036 (the Applicant) seek an order pursuant to s 8(3) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act), for waiver of the requirement to give notice to the owner of land concerning removal of a tree on that land, as ordinarily required by s 8(1)(a) of the Trees Act. An ancillary order that the Application proceed ex parte is also sought, as is an order that the proceedings be referred to the Registrar to obtain a hearing date.

2. The substantive proceedings concern an Application for removal of a mature Chinese Hackberry tree (the T****ree) located on a narrow strip of land (Strip of Land) which runs between 11-17 Wyndham Street, Alexandria (**the Applicant’**s Land) on one side, and 19-25 Wyndham Street, Alexandria on the other.

3. The following affidavits were read at the hearing:

(a) Affidavit of Junye Chen dated 10 July 2025; (b) Affidavit of Service of Junye Chen dated 7 July 2025; (c) Further Affidavit of Junye Chen dated 7 July 2025; (d) Affidavit of Maria Estacio dated 7 July 2025; (e) Affidavit of Kane Darcy Williams dated 7 July 2025; and (f) Affidavit of Tahlia Sinclair dated 10 July 2025.

4. Also tendered as Exhibit A were the following:

(a) photos of one of the garage walls of the apartment building on the Applicant’s Land which shows damage being caused to that wall by the roots of the Tree; [1] (b) photos of the Tree itself; [2] and (c) a site map and a photo of the Strip of Land with the Tree at the far end of the photograph. This photograph shows the Strip of Land is only about one metre wide, running between the Applicant’s apartment building and the building situated on 19-25 Wyndham Street. The Strip appears overgrown with weeds or other vegetation. [3]

5. The affidavit evidence establishes the following facts:

(a) Mr William Hutchinson was the owner of the Strip of Land. He died on 26 July 1846; (b) according to the NSW Land Registry Services (LRS), the Strip of Land is “old system land (passage/lane)”, and the Estate of Mr Hutchinson (the Respondent) is still the documentary owner of the Strip of Land; (c) a copy of the Will and Codicil of the late Mr Hutchinson (proved on 3 September 1846, and obtained through a search made at the State Library of NSW) does not contain anything within its terms that indicates that the Strip of Land was left to any of Mr Hutchinson’s beneficiaries. This seems consistent with the advice of the LRS that the “documentary owner” remains the late Mr Hutchinson; and (d) the Tree is causing damage to the residential apartment building on the Applicant’s Land – principally to the wall of the building’s garage. Not only is damage being caused by the Tree, but that damage is creating difficulties for the Applicant in obtaining insurance coverage over the building.

6. A further issue in this matter concerns jurisdiction. Pursuant to s 4(1) of the Trees Act, the Act applies to trees on the following land (emphasis added):

“(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…”

7. The Land and the Applicant’s Land are zoned MU1 Mixed Use under the Sydney Local Environmental Plan 2012 (Sydney LEP).

8. The objectives of the MU1 Mixed Use Zone are the following:

“9. The Sydney LEP which took effect on 26 April 2023 introduced the MU1 Mixed Use Zone. It had the following Objectives:

• “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.” [4]

9. The LEP also permits with consent development of the following kind:

“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” [5]

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. Section 8 of the Trees Act provides as follows (emphasis added):

“8 Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give notice of the lodging of the application and the terms of any order sought at least 21 days before a hearing in relation to the application to—

(a) the owner of the land on which the tree is situated, and

(b) any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and

(c) any other person the applicant has reason to believe will be affected by the order.

(2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period.

(3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances.”

12. Given:

(a) the attempts that have been made to serve the Respondent, and what would appear to be the impossible task of doing so; (b) the failure, after reasonable attempts, to identify or locate any subsequent owner of the Strip of Land; (c) the advice from the LRS that the late Mr Hutchinson remains the “documentary owner” of the Strip of Land; (d) the absence of any indication from his Will that Mr Hutchinson bequeathed the Strip of Land to anyone; and (e) the urgency of the matter given the damage being done by the Tree and the insurance situation of the Applicant’s building;

I am satisfied that I should make an order under s 8(3) of the Trees Act waiving the requirement to give notice of the Application to an owner of the Strip of Land on which the Tree is situated.

13. I therefore make the following orders:

14. 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.

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

16. 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.

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Endnotes

See p 10 of the Form H Application.

See p 13 of the Form H Application.

See p 30 of the Form H Application.

Applicant’s Written Submissions (AWS) at [9].

AWS at [10].