Truong v Bolluk and Biber

[2018] NSWLEC 1378

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, or injury to any person (s 10(2) of the Trees Act). The Court has the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Has the tree damaged the applicant’s property?

7. Ms Truong’s pavers near the tree are uneven. Where areas of pavers have been removed for investigative purposes, several tree roots up to 30 mm in diameter, and one approximately 60 mm in diameter, can be seen in the sand base layer on which the pavers were laid. The appearance of the roots and their direction of growth leaves me in do doubt that they are roots of the Liquidambar. They have caused pavers to become uneven. I am satisfied, therefore, that the Liquidambar has caused damage to Ms Truong’s property.

Consideration of matters at s 12

8. Having considered all matters listed at s 12 of the Trees Act, I address below the ones I find relevant here.

9. The tree grows in the corner of the Bolluks’ rear garden, close to the common boundary with Ms Truong’s property. Its canopy overhangs at least three dwellings. As a result, any issues arising from its leaves, branches or roots may affect all of these properties. Conversely, they all benefit directly from the tree’s amenity, including its shade.

10. The Liquidambar is in good health, with no obvious structural defects. Without interference, it could be expected to live for many more years.

11. A permit would not be required from Cumberland Council to remove the tree.

12. The Liquidambar was already a large, mature tree when Ms Truong constructed her dwelling and installed the shed and pavers. The pavers were laid on a shallow base layer of sand. There is no concrete beneath the pavers, nor mortar between them. The paved area comes to within one metre of the tree’s base. I find the damage was entirely foreseeable. The tree’s presence, and future root growth, were not sufficiently considered when the shed and pavers were installed. It appears that they could have been located further from the tree (see Black v Johnson (No 2) [2007] NSWLEC 513). Alternatively, they could have been constructed with consideration for the likely effects of tree root growth.

13. Cutting all roots at the common boundary may cause the tree to become unstable – clearly this would be an unacceptable risk. However, exposed roots that have been shown to be causing damage are relatively small roots, unlikely to be contributing significantly to the tree’s stability or support. Cutting these surface roots would not adversely affect the tree’s structure. Larger structural roots, deeper in the ground, should not be cut.

14. Ms Truong raised the issue of leaf litter falling onto her roof and into the guttering, and other debris falling into her garden. There is no evidence that this has caused damage, so I will not make any orders on this basis. If any damage has resulted from such debris, it could have been avoided through reasonable maintenance on Ms Truong’s property, as per the principle in Barker v Kyriakides [2007] NSWLEC 292.

Does the tree need to be removed?

15. I find that pavers can be repaired without removing the tree. The tree provides significant amenity to the respondents’ property and others. If pavers are replaced using techniques that would better withstand the presence of roots, further damage in the near future is unlikely. No orders will be made to remove the Liquidambar.

Compensation

16. The Liquidambar was already a mature tree when the shed and pavers were installed. The damage was foreseeable and could possibly have been avoided had a different approach been used to installing the shed and pavers. The Bolluks have not contributed to the damage in any way. Ms Truong can undertake remedial works as she sees fit. No orders will be made for compensation.

Orders

17. As a result of the foregoing, the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 24 July 2018