Buckingham v Ryder - [2007] NSWLEC 458

Land and Environment Court

of New South Wales

CITATION: Buckingham v Ryder [2007] NSWLEC 458
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Janette Buckingham
RESPONDENT
Katherine Ryder

FILE NUMBER(S): 20536 of 2007

CORAM: Moore C

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
A vine is not a "tree" for the purposes of the Act

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Electricity Supply Act 1995
Forestry Act 1916
Rural Lands Protection Act 1998
Electricity Supply (General) Regulation 2001
Rural Fires Act 1997
Access to Neighbouring Land Act 2000

CASES CITED: Environment Protection Authority v Hardt (2006) 148 LGERA 61, [2006] NSWLEC 438

DATES OF HEARING: 16, 19 and 25 July

EX TEMPORE JUDGMENT DATE: 25 July 2007

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

25 July 2007

07/20536 Janette Buckingham v Katherine Ryder

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). It is made by Ms Buckingham, a resident of 27 Rosedale Street, Dulwich Hill, concerning a number of plants located at the rear of a dwelling located at 66 Windsor Road, Dulwich Hill. That property is owned and occupied by Ms Ryder.

2 Two matters arise for preliminary determination.

3 The first is whether the plants, which are located at the rear at Ms Ryder's dwelling in her private open space, are on her property or on Ms Buckingham's property. The reason for that question being relevant is that if they are located on Ms Buckingham's property, she is unable, pursuant to the provisions of the Act, to make an application. The reason for this is the Act applies to trees located on land adjoining her own land but not to any on her own land.

4 The second matter that arises for determination is whether, as a matter of fact when considering the relevant provisions of s 3(1) of the Act, the plants are trees or not for purpose of the legislation.

5 There have been several earlier preliminary hearings concerning this matter.

6 I now have in evidence before me a diagram prepared on behalf of Ms Buckingham, by Mr Peter Higgins, an arborist engaged by her, concerning the location of the two types of plants which are in involved in the application. Mr Higgins has provided a report concerning nature of these plants and he has made it clear that, and I accept that he is appropriately qualified to express such an opinion, there are two plants involved. One is a fig, a vine known as Ficus pumila, and the second is a vine known as Podranea ricasoliana.

7 The second of these plants is commonly known, according to Mr Higgins, as a Pink Trumpet Vine or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Buckingham v Ryder

Details

AGLC: Buckingham v Ryder [2007] NSWLEC 458
Case: [2007] NSWLEC 458
Decision Date: 25 July 2007

CaseChat Overview and Summary

In the case of Buckingham v Ryder, Janette Buckingham, the applicant, filed an application under section 7 of the Trees (Disputes Between Neighbours) Act 2006 against Katherine Ryder, the respondent, regarding plants located at the rear of a dwelling owned by Ryder. Buckingham sought the removal of these plants, specifically a vine known as Podranea ricasoliana, claiming they were causing disturbances. The primary issues were whether the plants were situated on Ryder's property and whether they qualified as "trees" under the Act, which would entitle Buckingham to seek their removal.

The court had to determine if the plants were located on Ryder's property and, if so, whether they qualified as "trees" under the Act. The definition of "tree" in the Act was ambiguous, encompassing woody perennial plants, plants resembling trees in form and size, and other prescribed plants. The court examined various legislative definitions of "tree" across different statutes and found no consistent approach. The court then referred to the Oxford English Dictionary, which defined a tree as a perennial plant with a self-supporting woody main stem or trunk, growing to considerable height and size. Based on the evidence, the court found that the Podranea ricasoliana did not meet this definition as it was a climbing vine, not a self-supporting plant. Therefore, it did not qualify as a "tree" under the Act.

Consequently, the court dismissed Buckingham's application for the removal of the plants under the Trees (Disputes Between Neighbours) Act 2006. The court advised that any request for access to Ryder's property for maintenance purposes should be pursued under the Access to Neighbouring Land Act 2000.

Orders