Hirst v Stewart [2020] NSWLEC 1223

Land and Environment Court New South Wales

Medium Neutral Citation: Hirst v Stewart [2020] NSWLEC 1223 Hearing dates: 26 March 2020 Date of orders: 09 April 2020 Decision date: 09 April 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: Refer to orders at [16] Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to property – apprehension of further damage and injury – tree removal sought Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: David Hirst (Applicant) Bradley Stewart (Respondent) Representation: Solicitors: A Mulcahy (Solicitor) (Applicant) B Stewart (Litigant in Person) (Respondent)

Counsel: Mulcahy Lawyers (Applicant) File Number(s): 2019/323635 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: Mr Hirst applied, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), for the pruning or removal of five trees (the trees), from the rear yard of the adjacent neighbouring property, located in Alstonville. 2. Mr Hirst contends that the trees are causing damage to the timber fence which delineates the common boundary, and that overhanging branches, some of which have broken and fallen, pose a risk of injury. He also claims that refuse falling from the trees into his property have caused damage to guttering and air conditioning, and that the maintenance required to clear away the fallen refuse is an unreasonable impost on him. 3. By 3 February 2020, when the matter came to the Court for mention via teleconference, contractors commissioned by Mr Stewart had completed a series of works to address these tree issues, such that all trees had been removed. Therefore, notwithstanding that neither a site inspection, nor an on-site hearing were possible under current COVID-19 related travel restrictions, this progress allowed the case to be resolved by teleconference hearings.