Turner v Garlick [2014] NSWLEC 1159

Land and Environment Court New South Wales

Medium Neutral Citation: Turner v Garlick [2014] NSWLEC 1159 Hearing dates: 13 August 2014 Decision date: 13 August 2014 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld in part. See orders at paragraph 25 Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for two trees to be removed; application regarding one tree dismissed. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: William and Leanne Turner (Applicants)

Colin and Melissa Garlick (Respondents) Representation: Roberts Legal (Applicants)

Mr B Richards, solicitor (Applicants) Mr C Garlick, litigant in person (Respondents) File Number(s): 20294 of 2014

Judgment

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

The application 1In Fern Bay the landscape is dotted with established trees among dwellings on large residential lots. One such tree ("Tree 1") is a mature fig (Ficus microcarpa) growing within the property of Mr and Mrs Garlick ("the respondents") in the northwest corner near their rear boundary. Mr and Mrs Turner ("the applicants") live at an adjoining property. Their property fronts a different street to the Garlick property so the section of common boundary is part of the Turners' side boundary but the Garlick's entire rear boundary. The fig tree is only several metres from the rear of the Turners' dwelling, that part of the dwelling being additions added to the original dwelling in 2008. Two smaller figs ("Tree 2" and "Tree 3") of the same species grow in the southwest corner of the Garlick property further distant from the Turners' dwelling, but close to the Turners' garden shed. 2The Turners have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the three trees and repairs to their property, on the basis that the trees have caused damage, are likely to cause further damage and are likely to cause injury. The damage they say the trees have caused is through root growth, and comprises: (a)displacement of the fence on the common boundary; (b)movement of the garden shed slab such that a crack is present in the slab and the doors close only with some difficulty; and (c)lifting and displacement of pavers alongside their dwelling. 3The Turner's application included alleged damage to their bathroom floor but this part of the claim was not pressed during the hearing. 4The injury they say is likely results from what they say are trip hazards caused by the lifted pavers and by surface roots in their lawn. 5The Garlicks dispute most of the claims regarding causation by their trees. They say that while roots might have contributed to paver displacement, water movement within and over the ground is more likely to be the major cause. They say if roots have caused damage elsewhere it is a result of the Turner's own actions, such as their building works falling short of regulatory requirements and irrigation of the lawn encouraging tree root growth. The Garlicks do not want to remove any of the trees, which they say provide shade and cooling to their dwelling and contribute to the amenity and privacy of their property. Despite this, they have offered to remove one of the smaller figs and to prune the other small fig. 6I must establish firstly if the Court has jurisdiction to make orders. The key tests are at s 10 of the Act. Only once I am satisfied that the Court's jurisdiction is engaged can I make orders, which are not necessarily those sought by the applicants but are orders that I see fit to deal with the situation, as set out at s 9. Before making any orders I must consider a range of discretionary matters at s 12.