Burgin v Turnbull [2018] NSWLEC 1412

Land and Environment Court New South Wales

Medium Neutral Citation: Burgin v Turnbull [2018] NSWLEC 1412 Hearing dates: 19 July 2018 Date of orders: 10 August 2018 Decision date: 10 August 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – terracotta sewer pipes – the tree was there first – the tree has been removed – whether the tree caused damage – poorly constructed retaining wall – whether damage has occurred since the applicant purchased –applicant made spurious claims in attempting to reach agreement with the respondent Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Cases Cited: Fang v Li & anor [2017] NSWLEC 1503 Fifield v Sang and Wang [2018] NSWLEC 1377 Knight v Simmons [2018] NSWLEC 1231 MacPhail v Ware [2008] NSWLEC 1213 Category: Principal judgment Parties: Rhonda Burgin (Applicant) John Turnbull (Respondent) Representation: C Arthurson, agent (Applicant) S Nevin, solicitor (Respondent)

Solicitors Sparke Helmore Lawyers (Respondent) File Number(s): 2018/119374 Publication restriction: No

Judgment

Background 1. Two large Liquidambar trees grew in the garden of John Turnbull's Bolton Point property. He saw them from beginning to end, having planted them in the 1960s and removed them earlier this year, by which time they had each reached an impressive size, as photographs and their remaining stumps attest. 2. In the early 1980s, a pool was constructed on a neighbouring property along with a retaining wall on or close to the common boundary. In 2013, Rhonda Burgin ('the applicant') purchased that property and has lived there since. In May 2017 her sewer pipes became blocked. The plumber who cleared them found tree roots inside. Suckers grew in her garden from roots of Mr Turnbull's Liquidambars. 3. In early 2018, some eight months after the initial sewer blockage, Ms Burgin wrote to Mr Turnbull ('the respondent'). Her letter (Exhibit C) was a complaint about the trees and a request that they be removed. It began with "Dear Sir, We are writing to complain about the Liquidambar trees on your property…". It is filled with false claims and mistruths, as became apparent through statements made by Mr Arthurson (Ms Burgin's fiancé and her agent at the hearing). Examples include: The Liquidambar tree is considered a noxious weed… The roots were identified as the roots of Liquidambar tree. We have now discovered the pool has been undermined by the trees [sic] root system and now we have voids under the pool and the pool is sinking and the coping around the pool is lifting and cracking. …the pool will have to be removed and replaced once the trees are gone. 1. Less than five weeks later, on 1 March, Mr Turnbull had the trees removed. 2. On 16 May, Ms Burgin filed an application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking the following orders: 1. Removal of Liquidambar trees (STYRACIFLUA) from their yard with the killing of their root system. 2. All damage to the sewer system be repaired and replaced. 3. Swimming pool has to be removed and replaced due to root damage as well as having to be removed to facilitate the excavation to repair sewer. 4. All fences and retaining walls damaged by the root system and by the required repairs to yard and sewage system and pool be replaced. 5. Root removal from yard to prevent any future damage to sewage system, pool area and yard. 6. Yard repair, landscaping and repair to any and all paving and pathways areas [sic] damage from all repair work carried out. 7. Cost for temporary accommodation if required while sewer is repaired if home has no toilet or shower facilities. 1. Mr Turnbull refutes the claim. He obtained a report from arborist Andrew Scales of Naturally Trees.