Bolanos v Turpin [2021] NSWLEC 1810

Land and Environment Court New South Wales

Medium Neutral Citation: Bolanos v Turpin [2021] NSWLEC 1810 Hearing dates: 17 December 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent's land – damage caused by flying foxes – no jurisdiction under the Trees Act Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10 Uniform Civil Procedure Rules 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Category: Principal judgment Parties: Deidre Bolanos (Applicant) John Turpin (Respondent) Representation: Counsel: D Bolanos (Self-represented) (Applicant) John Turpin (Self-represented) (Respondent) File Number(s): 2021/286557 Publication restriction: No

Judgment

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

Background 1. COMMISSIONER: The applicant, Deidre Bolanos, owns a property in Bass Hill, while John Turpin, the respondent, is her side neighbour, to the west. Between the properties is a bitumen sealed public laneway, about four metres wide and there is a gutter and a narrow verge on the respondent's side. This laneway, and both boundaries, run from north to south. The applicant's house has been constructed quite recently, while the respondent's dwelling is long established, and is leased to tenants. 2. The trees, four mature Syagrus romanzoffiana (Cocos or Queen Palm), about 10-11 metres in height with a canopy spread of about 8-9 metres, are planted about 600mm inside Mr Turpin's land, roughly parallel to the boundary facing the laneway. Three of the trees are located in the small front yard at the southern end, while the fourth is closer to the middle of the boundary, further to the north. There is a gap of about five metres between the trees and Ms Bolanos' side boundary. 3. Ms Bolanos lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), in order to remedy damage that she says is currently occurring as a result of the trees, to prevent damage, that she believes is likely in the near future, and to mitigate risk of injury occurring as a result of the trees. The source of the damage is flying-foxes which the applicant says, occupy and/or feed from the trees. 4. At question 4 of her application, Ms Bolanos notes damage as a result of flying-fox excrement to boundary metal and brick fences, metal roof, exposed aggregate and marble paved paths, bricks and render, swimming pool and surrounds, garage doors, cladding, light fittings, and her water tank. The applicant says that she can't use her outdoor clothesline as a result of the flying-fox excrement, and that screeching noises that the flying-foxes make at night disturbs one of her children's sleep.