Mostafiz v Toll

[2020] NSWLEC 1672

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mostafiz v Toll [2020] NSWLEC 1672

Hearing dates:

21 August 2020

Date of orders:

23 December 2020

Decision date:

23 December 2020

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The applicants (or a suitably qualified horticulturist or arborist engaged by the applicants) are to cut the woody root that has damaged their sewer pipe, at any preferred point between the pipe and the common boundary they share with the respondents. The root must be cut cleanly with a saw.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the neighbouring tree caused damage – sewer pipes – whether the tree must be removed – orders for root pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Hinde v Anderson [2009] NSWLEC 1148

Texts Cited:

Land and Environment Court, ‘COVID-19 Pandemic Arrangements Policy’ (July 2020)

Category:

Principal judgment

Parties:

Mohammad Mostafiz (First Applicant)
Shormin Mostafiz (Second Applicant)
Graham Toll (First Respondent)
Gail Toll (Second Respondent)

Representation:

T Mostafiz (Agent) (Applicants)
G Toll (Litigant in person) (First Respondent)
G Toll (Litigant in person) (Second Respondent)

File Number(s):

2020/99856

Publication restriction:

No

Judgment

Background to the application

1. Mohammad and Shormin Mostafiz (the ‘applicants’) reside at their Ingleburn property. After their sewer pipe became blocked in October 2019, they had it cleared by a plumber. They subsequently undertook excavations around the pipe and found large tree roots.

2. On the neighbouring property belonging to Graham and Gail Toll (the ‘respondents’) is a Liquidambar styraciflua (liquidambar) (‘the tree’), only a metre or so from the common boundary.

3. Mr and Mrs Mostafiz have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for repairs to their sewer pipe, compensation from the respondents for sewer pipe clearing costs, and for removal of the tree.

Framework for this decision

4. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

5. The Court can make orders, such as those at s 9 of the Trees Act, to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature…