Soyunmez v Kasule

Land and Environment Court

New South Wales

Medium Neutral Citation:	Soyunmez v Kasule [2011] NSWLEC 1233
Hearing dates:	12 August 2011
Decision date:	12 August 2011
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove trees dismissed. Orders made for replacement of sewer pipe and repair of pathway.
Catchwords:	TREES [NEIGHBOURS] damage to property; factors other than trees; apportionment of cost of rectification.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
Category:	Principal judgment
Parties:	S Soyunmez (Applicant) J & A Kasule (Respondents)
Representation:	Applicant: S Soyunmez (Litigant in Person) Respondents: J & A Kasule (Litigants in Person)
File Number(s):	20343 of 2011

Judgment

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

1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Auburn against the owners of trees growing on an adjoining property.

1. The applicant is seeking the removal of 4 trees growing at the rear of the respondents' property as she contends that roots from the trees have blocked her sewer and cracked the side path on the southern side of her dwelling.

1. The trees in question are 3 Cupressus sp and 1 Eucalyptus sp. The Cypress trees are growing in a narrow garden bed that adjoins the dividing fence between the parties' properties. There are two trees, including a mature Pittosporum undulatum growing along the rear fence of the property to the east of the respondents' property. The southern side boundary of the applicant's property adjoins these two properties.

1. I was shown a woody root about 100mm in diameter from one of the Cypress protruding beneath the fence. The applicant had severed it about 6 years ago. The concrete pathway runs the length of the house between the dividing fence and the wall of the dwelling. It is about 50 mm thick and sits on what felt like soil rather than road base. There are no expansion joints in any part of it. Several cracks were observed. The applicant contends that roots from the respondents' trees have caused the cracks. I note that the concrete paths to the east and west of the path in question are also in poor condition and do not appear to have been professionally installed.

1. The applicant has owned her property since 1997. She estimates the house to be at least 30 years old. The pathway was present when she moved in and is therefore more than 14 years old. The sewer runs beneath the path along the southern side of the applicant's property.

1. The applicant stated that she first noticed the cracked path and the blocked sewer in 2004 and she informed the then owners of the respondents' property. She stated that they refused to do anything about the trees.

1. The respondents purchased their property in September 2008. About 6 months after…