Dolan v Hawker

Land and Environment Court New South Wales Medium Neutral Citation: Dolan v Hawker [2026] NSWLEC 1581 Hearing dates: 31 August 2026 Date of orders: 31 August 2026 Decision date: 31 August 2026 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted to the extent of the following order. (2) Within 7 days of the date of these orders, the Respondent is to transfer $300 to the Applicant’s bank account. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — one tree has been removed — whether a tree has caused damage — whether a tree is likely to cause damage — apportioning costs of works — order for compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 4, 7, 8, 9, 10, 12 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ava Dolan (Applicant) Maxine Hawker (Respondent) Representation: Counsel: A Dolan (Self-represented) (Applicant) M Hawker (Self-represented) (Respondent) File Number(s): 2026/280117 Publication restriction: Nil Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background COMMISSIONER: Ava Dolan and Maxine Hawker are neighbours in Byron Bay. Ms Dolan has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (Trees Act)

seeking orders for compensation for damage caused to her property by a tree on Ms Hawker’s land, and to prevent a tree on Ms Hawker’s land causing damage to Ms Dolan’s property. Ms Hawker does not dispute that her tree caused damage to Ms Dolan’s property, but disputes elements of Ms Dolan’s claim for compensation. During the on-site hearing, the Court inspected the trees and relevant parts of both properties. The parties were self-represented. Framework for this decision The orders that Ms Dolan seeks are orders the Court can make pursuant to s 9 of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances. Before making orders, the Court must be satisfied of certain matters set out at s 10 of the Trees Act. The Court is to consider matters at s 12 of the Trees Act before determining the application. Reasonable effort to reach agreement; notice of the application Conditions at s 10(1) of the Trees Act must be met before the Court can make orders in these proceedings. 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. Beginning 28 November 2025, Ms Dolan sent Ms Hawker several emails outlining elements of damage caused to her property by a tree on Ms Hawker’s land. Ms Dolan and Ms Hawker disagree on whether the other party acted reasonably. Nevertheless, it seems clear from the correspondence that they were unlikely to reach agreement. I am satisfied that Ms Dolan has made a reasonable effort to reach agreement with Ms Hawker. Ms Dolan has also given notice of her application in accordance with s 8 of the Trees Act. A tree caused damage to property The hurdle at s 10(2) of the Trees Act must be passed before the Court can make orders in these proceedings. 10 Matters of which Court must be satisfied before making an order (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. Ms Hawker planted a red cedar (Toona ciliata) (“the tree”) on her land around the same time the boundary fence was installed in 2019. The tree was within a metre of the fence. In November 2025, Alex Nowell, an arborist engaged by Ms Dolan, reported that the tree was 8.5 metres tall. Mr Nowell identified and described damage caused by the red

cedar’s roots to the boundary fence, Ms Dolan’s pool fence, and Ms Dolan’s synthetic turf. Allweather Synthetic Grass carried out remediation works to Ms Dolans’ synthetic turf in June 2025 at a cost of $385. Chris Priem, of Allweather Synthetic Grass, later wrote a letter identifying tree roots as the cause of damage to the synthetic turf. Ms Dolan wrote to Ms Hawker on 28 November 2025 notifying Ms Hawker that the red cedar’s roots were causing damage to the boundary fence and to Ms Dolan’s pool fence and synthetic turf. After being notified on 28 November 2025 of damage caused by her tree, Ms Hawker had the red cedar removed on 21 December 2025. Although the red cedar has been removed, pursuant to s 4(4) of the Trees Act the tree is still taken to be situated on Ms Hawker’s land for the purposes of the application. Ms Hawker does not dispute that her red cedar caused damage to Ms Dolan’s property. Ms Dolan has carried out repairs to the boundary fence, her pool fence and her synthetic turf, but photographs show the damage and the presence of tree roots where property was damaged. I am satisfied that the red cedar caused damage to Ms Dolan’s property. Pursuant to s 10(2) of the Trees Act, orders can be made in relation to damage caused by the red cedar. Whether a tree is likely to cause damage to property Another tree on Ms Hawker’s land is not far from the red cedar and

approximately one metre from the dividing fence. In her application, Ms Dolan calls this tree “T2”, a lilly pilly. It is more likely a yellow wood (Acronychia oblongifolia) although it was without flowers or fruit at the time of the hearing and its foliage is similar to any number of native rainforest trees. Tree roots were found in a sewer inspection point in a sewer easement on Ms Dolan’s land, close to the dividing fence and to T2. Ms Dolan submits that the roots were from T2. Ms Dolan described that roots had entered the inspection point where the pipe was cracked. The cause of the crack in the pipe is not known. Roots have been removed and the pipe has been repaired. Ms Dolan says that T2’s roots are likely to enter and damage the sewer inspection point again. She wants a root barrier installed along the boundary. Now that the inspection point’s pipe is repaired, it seems to me unlikely that T2’s roots will damage it within the near future, or within the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592 at [14]. No evidence has been provided to demonstrate that T2’s roots are likely to damage any element of Ms Dolan’s property in the near future. Pursuant to s 10(2) of the Trees Act, orders must not be made in these proceedings in relation to T2. Consideration of relevant matters Before determining this application, I am required to consider matters at

s 12 of the Trees Act. I have considered the s 12 matters, the most relevant in this decision being s 12(h), where the Court is to consider: (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property— (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, Various acts and omissions are relevant here. When the dividing fence was installed in 2019, Ms Dolan and Ms Hawker agreed that, should any tree on one property damage the fence, the owner of the tree would be responsible for the fence’s repair. Ms Hawker told Ms Dolan that she is willing to pay for damage her tree caused to the dividing fence, as per their 2019 agreement. Ms Dolan had her artificial turf repaired in June 2025 but did not mention this to Ms Hawker until her email of 28 November 2025 when she also noted damage to her pool fence and the dividing fence. After being notified on 28 November 2025 of the damage, Ms Hawker promptly had the tree removed on 21 December 2025. Ms Hawker has taken reasonable steps to prevent her tree

causing damage. Ms Hawker was not aware that tree roots were causing a problem for Ms Dolan’s synthetic turf until some 5 months after Ms Dolan had the damage repaired. Ms Hawker was provided with no opportunity to inspect or review the damage. She could not have reasonably prevented the damage. There is no reason for Ms Hawker to compensate Ms Dolan for the synthetic turf repair costs of $385. Ms Dolan engaged Nemo Carpentry Projects (“Nemo”) to fix her pool fence and the dividing fence in January 2026. Nemo invoiced $908.50 for these works on 30 January 2026. Ms Dolan wants Ms Hawker to compensate her $908.50 as per the Nemo invoice. Nemo invoiced Ms Dolan separately for other works completed around the same time, including increasing the dividing fence’s height for pool safety as required by Byron Shire Council. As per their 2019 agreement, Ms Hawker submits that she is willing to pay for repairing any damage caused by her tree to the dividing fence. Ms Hawker was not aware of damage to Ms Dolan’s pool fence prior to Ms Dolan’s letter of 28 November 2025, after which Ms Hawker promptly had the red cedar removed. Ms Hawker could not have reasonably prevented damage to the pool fence, so there is no reason for her to compensate Ms Dolan for the cost of its repair. Ms Hawker was not provided with an opportunity to inspect or assess the damage, other than by photographs provided

to her. Considering the holiday season dominating the period between notification of damage and Ms Dolan repairing the damage, Ms Hawker had limited opportunities to have input to the repair process, even though that included repairs to the dividing fence. The Nemo invoice of $908.50 is not itemised. It covers works not only to the boundary fence, but also for the pool fence, including re-concreting of the pool fence’s footings. Relying on the items covered by the invoice, I estimate that works to the dividing fence account for less than half of the invoice amount. The Nemo invoice includes the business’ ABN. Ms Hawker discovered and provided evidence that the ABN’s status was cancelled at the time of the invoice. The Nemo invoice shows an hourly rate for labour of $140 and states “Works completed by two workers.” Ms Hawker suggests that the hourly rate shown reflects $70 per hour for each of the two workers. Nemo’s invoice to Ms Dolan for other works not related to root damage shows an hourly rate of $70 for the principal carpenter and an hourly rate of $55 for the labourer. Those works were done by the same two people on and around the same day as the works on the $908.50 Nemo invoice. Ms Dolan could not explain the difference in hourly rates shown on the invoices. These two issues – the cancelled ABN and the shifting hourly rates – reduce the extent to which the Nemo invoice

can be relied upon. If the cost of repairs to the dividing fence is less than half the invoice amount (see above at [27]), I think it is reasonable that Ms Hawker pays roughly a third of the invoice amount, which I will round down to $300. This amount represents her payment for damage caused by her tree to the dividing fence. Orders The Court orders: The application is granted to the extent of the following order. Within 7 days of the date of these orders, the Respondent is to transfer $300 to the Applicant’s bank account. D 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: 09 September 2026