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. 1The 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). 2In 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. 3However, 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. 4The 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. 5We 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. 6As a consequence, we have agreed to make the consent orders as sought. 7The 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2011