Mostafiz v Toll [2020] NSWLEC 1672

Land and Environment Court New South Wales

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.