Dawes v Scarf

[2011] NSWLEC 1084

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dawes v Scarf [2011] NSWLEC 1084

Hearing dates:

18 April 2011

Decision date:

18 April 2011

Jurisdiction:

Class 2

Before:

Moore SC, Galwey AC

Decision:

(1)The respondent is to pay the applicant of the sum of $1533 in final in full settlement of all claims within 60 days of the date of these orders;

(2)The tree is to be removed within 60 days of the date of these orders;

(3)The tree removal is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

(4)The tree is to be removed at cost to the respondent; and

(5)If requested, the applicant is to provide access to his property for the purposes of removal of the tree at a reasonable hour of the day, on reasonable notice with the applicant having the opportunity to supervise the access if it is so required.

Catchwords:

Trees (neighbours); damage to sewer not on applicant's property; damage to applicant's property

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

W Dawes (Applicant)
S Scarf (Respondent)

Representation:

Applicant in person
Mr D Loether, Solicitor (Respondent)
Bartier Perry

File Number(s):

20948 of 2010

Judgment

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

1. The property upon which the tree is located shares a common boundary with the applicant's property of approximately 100 mm in width - that is sufficient to enliven the jurisdiction of the Court as the properties are adjoining as required by Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. In these proceedings, the damage that has been caused is primarily to a shared sewer line where the roots of the Paperbark tree have intruded into that sewer line, not on the applicant's property but on an adjacent property immediately next to the property where the tree is located.

1. However, we have received, this morning, uncontradicted oral evidence from the applicant that the backing up of the sewer pipe caused staining damage to clothing on his property and staining of tiles. As a consequence, we are satisfied that the relevant test under s 10(2)(a) of the Act is satisfied and our jurisdiction is enlivened.

1. The parties have reached agreement as to what should be the outcome of the proceedings - namely the removal of the Paperbark tree and the payment by the tree owner to the applicant of the sum of $1533 in final in full settlement of all claims. Agreement has also been reached that that payment should be made within 60 days of the date of these orders.

1. We have inspected the tree by climbing a small stepladder and looking into the grounds of the property upon which the tree is located. We have had regard to the fact that the next property further downstream on the sewer line has, on the applicant's evidence, a freshly laid concrete slab that renders it impossible for there to be an easy replacement of the sewer line. We are satisfied that it is not appropriate to require relining of the sewer and that the appropriate course of action to take is to order the removal of the tree. This is as agreed between the parties.

1. As a consequence, we have agreed to make the consent orders as sought.

1. The orders of the Court, by consent, therefore are:

(1)   The respondent is to pay the applicant of the sum of $1533 in final in full settlement of all claims within 60 days of the date of these orders;

(2)   The tree is to be removed within 60 days of the date of these orders;

(3)   The tree removal is to be undertaken by an AQF level III arborist with appropriate WorkCover insurances;

(4)   The tree is to be removed at cost to the respondent; and

(5)   If requested, the applicant is to provide access to his property for the purposes of removal of the tree at a reasonable hour of the day, on reasonable notice with the applicant having the opportunity to supervise the access if it is so required.

Tim Moore  

Senior Commissioner

David Galwey

Acting Commissioner of the Court