Truong v Bolluk and Biber

Land and Environment Court

New South Wales

Medium Neutral Citation:	Truong v Bolluk and Biber [2018] NSWLEC 1378
Hearing dates:	18 July 2018
Date of orders:	18 July 2018
Decision date:	18 July 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – lifted paving – tree removal not required – paving can be repaired – paving was installed close to existing neighbouring tree – tree owners have not contributed to damage
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Hue-Linh Truong (Applicant) Selcuk Bolluk (First Respondent) Hatice Biber (Second Respondent)
Representation:	H Truong, litigant in person (Applicant) S Bolluk and H Biber, litigants in person (Respondents)
File Number(s):	2018/90381

Judgment

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

Background

1. The Liquidambar (‘the tree’) growing in the rear garden of Selcuk and Hatice Bolluk’s Guildford property is a large mature shade tree many decades old. (The case name of this decision uses Ms Bolluk’s maiden name, as per their property title.) The Bolluks (‘the respondents’) have owned their property since early 2015. The tree is several metres from the dwelling on their property, but is less than five metres from a dwelling to the southwest of their property and from the dwelling to the northwest belonging to Ms Truong (‘the applicant’). Being a Liquidamber less than five metres from the external wall of a residential dwelling, the tree is exempt from Cumberland Council’s tree controls – a permit is not required to remove it.

2. Ms Truong has owned her property for more than 15 years; she had her dwelling constructed approximately 11 years ago, and installed a shed and pavers beneath the Liquidambar’s canopy at that time.

3. Ms Truong says she first noticed uneven pavers near the tree two years ago. The pavers became more uneven about a year ago. She told the Bolluks about this in May or June last year. The Bolluks have taken no action since then.

4. Ms Truong has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking the following orders (my summary):

1. That the respondents remove the Liquidambar

2. That the respondents pay for her shed and 12m2 of pavers to be removed, all roots on her property removed or ground out, and the shed and pavers to be reinstalled.

3. That the respondents be responsible for any other damage to her property.

5. No arboricultural evidence has been filed by the parties. The onsite hearing allowed observations of the situation. I bring my own arboricultural expertise and experience to the matter.

Framework of the Trees Act

6. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property,…