Samuel v Euston [2012] NSWLEC 1094

Land and Environment Court New South Wales

Medium Neutral Citation: Samuel v Euston [2012] NSWLEC 1094 Hearing dates: 10 February 2012 Decision date: 01 March 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; removal refused, pruning refused, part payment of compensation ordered, replacement of a section of sewer pipe ordered Catchwords: TREES [NEIGHBOURS] Damage to property - sewer; risk of injury; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: W & R Samuel (Applicants)

G & J Euston (Respondents) Representation: W Samuel (Applicant in person)

G Euston (Respondent in person) File Number(s): 21023 of 2011

Judgment 1COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Dapto against the owners of trees growing on an adjoining property. 2There are two trees in contention. Both are Ficus macrocarpa var hillii (Hill's Weeping Fig) growing along the southern boundary of the respondents' backyard. Tree 1 (T1) is located in the western corner of the property, to the west of Tree 2. They are two of a number of figs growing along the western and southern boundaries of the respondents' property. 3The applicants are seeking the removal of T1 for the following reasons: roots from the tree have caused continual blockages and damage to the sewer system requiring ongoing expense; and, if any large, unstable branches fall, they may cause major damage to property or injury to anyone in the garden. Orders are sought for the pruning of overhanging branches from T2 on the basis they may cause damage or injury should they fall. The applicants contend that branches have fallen from both trees. They say they are particularly scared to use their garden should a large stem of T1 fail. 4The applicants are also seeking compensation of $1968 for plumbing costs they say are the result of roots blocking the sewer. 5The respondents do not wish to remove the trees, but are prepared to prune them as they have in the past as long as the costs of pruning are shared. The respondents are prepared to pay 50% of the relevant plumbing costs incurred by the applicants, an amount they say is $757.25 given that some items in the plumbing invoices are not related to the sewer. They are also prepared to pay for the replacement of the sewer pipes with PVC. 6The applicants do not want to replace the pipes, as to do so would require the digging up of some paving and disruption to their backyard.