West v SK Sachdev Pty Ltd

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — no appearance by the respondent — neighbouring trees — whether the trees have caused damage to the applicant’s property — risk of further damage or injury — orders for aerial inspection — orders for pruning — order for compensation

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 6, 7, 8, 9, 10, 12

Cases Cited: Barker v Kyriakides [2007] NSWLEC 292

Texts Cited: Australian Standard 4373:2007, Pruning of amenity trees
Safe Work Australia (2016), Guide to managing risks of tree trimming and removal work

Category: Principal judgment

Parties: Annette West (Applicant)
SK Sachdev Pty Ltd (First Respondent)
Preswick Pty Ltd (Second Respondent)

Representation: Counsel:
A West (Self-represented) (Applicant)
No appearance (First and Second Respondents)

File Number(s): 2025/270515

Publication restriction: Nil

Judgment

Background

1. COMMISSIONER: Annette West (the applicant) has lived at her Kiama Downs townhouse since 2013. Hers is the southernmost townhouse in a row of townhouses at 39 Meehan Drive (No 39). The adjoining property to her west, 41–43 Meehan Drive (No 41), is owned by two companies: SK Sachdev Pty Ltd (60% share) and Preswick Pty Ltd (40% share). No 41 is managed by Macquarie Real Estate. Trees grow on an embankment on No 41 close to the common boundary shared with No 39: one large gum tree and several smaller she-oaks. The trees’ branches overhang No 39. Branches have fallen and caused damage to property at No 39. Debris from the trees has built up on No 41 against the dividing fence.

2. Ms West has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking the removal of the gum tree and four she-oaks. She also seeks compensation for property damage caused by fallen branches.

3. The onsite hearing allowed the Court to inspect the trees and both properties. Ms West was self-represented. Dr Sudarshan Sachdev, who was present at the beginning of the hearing, claimed to be a director of both respondents. Dr Sachdev left soon after the hearing began, saying Joe Romeo, of Macquarie Real Estate, could represent the respondents. I informed Dr Sachdev that the respondents had not filed any documents naming their directors, and had not filed any Notice of Appearance, a requirement in these proceedings. For convenience, I granted leave to Mr Romeo to represent the respondents during the onsite hearing, conditional on the respondents later filing certain documents. I then heard submissions before adjourning at the end of the onsite hearing and making the following order:

4. Within 7 days of the date of this order, the respondents are to file with the Court and serve on the applicant:

(a) the names and contact details of all directors of both companies that share ownership of the respondents’ property (b) completed ‘Notice of Appearance’ forms signed by the respondents (c) details of Mr Romeo’s position at Macquarie Real Estate and his contact details (d) copies of a completed ‘Representation by Agent’ form, identifying Mr Romeo as the agent and signed by the respondents.

4. The respondents did not comply with the order made on 22 October 2025, so the matter was listed for a further hearing on 20 November 2025 to allow them a further opportunity to provide the requested documents or to explain their inability to do so. The respondents did not appear at the 20 November 2025 hearing.

5. With the history set out above in mind, I have made this decision relying on the material that Ms West filed with the Court, my observations of the site and the trees at the onsite hearing, and Ms West’s submissions at the two hearings. In the absence of evidence identifying representation for the respondents, the Court has not heard any submissions from the respondents.

6. Ms West provided photographs of damage to her property caused by tree branches and invoices for repairing or replacing damaged property. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

7. The orders that Ms West seeks are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

8. The Court must not make any order unless it is satisfied, first, that Ms West has made a reasonable effort to reach agreement with the respondents, and second, that the trees have caused, are causing, or are likely in the near future to cause, damage to her property, or are likely to cause injury to a person: s 10 of the Trees Act. Before determining the application, the Court must consider relevant matters at s 12 of the Trees Act.

The applicant has made a reasonable effort

9. Ms West has written to the managing agent of the respondents’ property several times over several years, detailing her concerns about the trees and asking for the respondents to take action to prevent damage or injury. The respondents have been uncooperative, failing to reply to most of her correspondence and taking no action on the trees. I am satisfied that Ms West’s efforts to reach agreement with the respondents were reasonable and that she gave notice of the application as required by s 8 of the Trees Act.

Damage or injury

10. The test at s 10(2) of the Trees Act must be met for any one tree before orders may be made for that tree.

The Sydney blue gum

11. The Sydney blue gum (Eucalyptus saligna), which is only a few metres from the common boundary, is a tall and mature native tree with a stem diameter at chest height greater than one metre. It appears healthy and is without major structural defects. The eastern side of the blue gum’s crown extends past the common boundary, with some overextended branches and dead branches overhanging Ms West’s dwelling and courtyard.

12. Ms West has kept some dead branches that have fallen from the blue gum and damaged her property. Branches have damaged roof tiles, her clothesline and terracotta pots. Some damaged property, such as roof tiling, is the responsibility of her strata plan, which has paid for repairs. Her own property damage, for which she has paid, includes her clothesline and the terracotta pots. I am satisfied that the blue gum has damaged Ms West’s property.

13. The pattern of branches falling is likely to continue, resulting in further damage to Ms West’s property in the near future if preventative action is not taken. Orders can be made to minimise the risk.

The she-oaks

14. Four she-oaks grow on the embankment on the respondents’ property behind the boundary fence. Two of these trees overhang Ms West’s courtyard; others overhang her neighbours’ courtyards. The trees are still growing and shedding branches, so branches over Ms West’s property are likely to fall and cause minor damage, such as to her fence or garden items, in the near future. This can be prevented by pruning.

15. The she-oaks drop debris onto Ms West’s property. If left in gutters or on other surfaces, debris may cause some deterioration of those surfaces. However this could be avoided through property maintenance, a reasonable expectation in an urban environment with trees, as per the principle at [20] in Barker v Kyriakides [2007] NSWLEC 292:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

16. Orders will not be made to prevent damage from debris on Ms West’s property. But debris that has fallen on the respondents’ property, from she-oaks and the blue gum, has built up substantially against the dividing fence, which partly belongs to Ms West. If the debris is not removed, the fence is likely to be pushed into Ms West’s property. An order will be made to prevent that.

Consideration of s 12 matters

17. I have considered the matters at s 12 of the Trees Act. Where I have not already discussed them and they are relevant to this decision, I discuss them below.

18. Ms West has requested action for many years. She has asked for the trees to be assessed by a qualified arborist and maintained as needed. The respondents have taken no action in response to Ms West’s requests. The respondents did not respond to the application, nor did they file a Notice of Appearance.

19. The trees, especially the blue gum, provide environmental benefits. They contribute to public amenity; they provide habitat, shading and cooling, and they reduce water run-off. Pruning to minimise the risk of property damage and injury would not adversely impact the trees. Pruning (or removal) would ordinarily require consent from Kiama Municipal Council, but pursuant to s 6(3) of the Trees Act, the respondents will not require consent for tree works in Order (3) in these proceedings.

20. My inspection of the Sydney blue gum was limited to ground-based observations made during the onsite hearing. Not all parts of the tree’s upper stem and scaffold branches could be seen clearly. For this reason, an order will be made for the respondents to engage an arborist to carry out an aerial inspection and provide a written report, a copy of which is to be given to Ms West. Using climbing equipment to access the tree’s crown would allow the most complete assessment, but alternative means for aerial access, such as an elevated platform vehicle, may be used if preferred.

21. Damage to Ms West’s property might have been avoided had the respondents taken action when requested. The respondents will be ordered to compensate Ms West for the costs she incurred replacing damaged property. Ms West provided copies of invoices for replacing broken pots ($55) and a clothesline ($195).

Orders

22. The Court orders that:

23. The application is granted to the extent of the following orders.

24. The respondents are to engage and pay for a suitably qualified (minimum AQF level 5) and insured arborist to carry out an aerial assessment of the Sydney blue gum and provide a written report, including any pruning recommendations to minimise risks from hazardous branches, within 30 days of the date of these orders. The respondents are to provide a copy of the report to the applicant within 5 days of receiving the report.

25. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune the Sydney blue gum and the two she-oaks nearest the applicant’s property within 60 days of the date of these orders, to:

(a) remove all dead branches greater than 25 mm in diameter above the applicant’s property and within 4 metres of the common boundary; and (b) reduce or remove overextended branches above the applicant’s property.

4. The works in Order (3) must be done in accordance with Australian Standard 4373:2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.
5. Any other works recommended in the report resulting from Order (2) are to be the subject of an application to Kiama Municipal Council (Council).
6. Subject to receiving Council’s consent if required (see Order (4)), and subject to any conditions within that consent, the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to carry out any works, beyond those in Order (3), recommended in the report resulting from Order (2) within 90 days of the date of these orders.
7. Within 30 days of the date of these orders, the respondents are to remove debris that has fallen from the trees and has collected behind the fence on the common boundary between the respondents’ property and the applicant’s property.
8. On at least two days notice from the respondents, the applicant is to allow access to her property during reasonable hours of the day for the purpose of cleaning up debris resulting from the tree works in Orders (3) and (6).
9. Within 14 days of the date of these orders the respondents are to pay Ms West $250 compensation for property damage.
10. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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