Turner v Garlick

[2014] NSWLEC 1159

Land and Environment Court

New South Wales

• Amendment notes

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

1. In 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.

1. The 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.

1. The Turner's application included alleged damage to their bathroom floor but this part of the claim was not pressed during the hearing.

1. The 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.

1. The 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…