Timmins v Park - [2010] NSWLEC 1178

Land and Environment Court

of New South Wales

CITATION: Timmins v Park [2010] NSWLEC 1178

PARTIES:
APPLICANT
B Timmins
RESPONDENT
S Park

FILE NUMBER(S): 20159 of 2010

CORAM: Moore SC - Hewett AC

KEY ISSUES: JURISDICTION - TREES (NEIGHBOURS) :- Vine

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Trees (Disputes Between Neighbours) Amendment Act 2010
Trees (Disputes Between Neighbours) Regulation 2007

CASES CITED: Buckingham v Ryder [2007] NSWLEC 458

DATES OF HEARING: 21 May 2010

EX TEMPORE JUDGMENT DATE: 21 May 2010

LEGAL REPRESENTATIVES:
APPLICANT
In person
RESPONDENT
Mr D Berryman, solicitor
Berryman Partners Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
HEWETT AC

21 May 2010

10/20159 Timmins v Park

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

1 SENIOR COMMISSIONER: This is an application pursuant to the Trees (Disputes Between Neighbours) Act 2006 made by Ms Timmins concerning a number of plants growing on the neighbouring property to the south owned by Mr Park.

2 It is convenient for the purposes of this decision to describe the nature of the vegetation that is involved in the application and some conclusions that we have drawn with respect to it before dealing with questions of jurisdiction that are inextricably interwoven with the factual matters that we need to determine.

3 A fence of corrugated iron sheeting supported on metal posts with wooden rails marks the boundary between the two properties. It runs generally east-west along the majority of the boundary between the properties. The parties agreed at the commencement of the proceedings - Ms Timmins and Mr Berryman, solicitor for Mr Park doing so - that we should regard the fence as being located on the boundary and that the junction of the concrete slabs on each side should be treated as a precise designation of the boundary.

4 Ms Timmins' application seeks orders for removal of the vegetation and also for compensation for rectification of damage to her household sewer line together with reinstatement of the pathway on her side of the boundary.

5 It is appropriate to record a little of the history concerning difficulties with her sewer line. In December 2008, Ms Timmins was obliged to call a plumber because of a blockage to her sewer. The plumber undertook a line clearing examination and provided her with an account that recorded two observations are relevant to these proceedings. The observations were that:

first, the pipes are generally in good condition except for the vertical riser; and
second, there was a “tree root infestation” in the pipes that would require regular attention.

6 At that time, in December 2008, Ms Timmins did not advise Mr Park of the blockage of her pipe.

7 In December 2009, there was a further blockage of the pipe – causing effluent to be discharged on to Mr Park’s property and, amongst other things, caused Mr Park to seek involvement by Lake Macquarie City Council and…

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 Timmins v Park

Details

AGLC: Timmins v Park [2010] NSWLEC 1178
Case: [2010] NSWLEC 1178
Decision Date: 21 May 2010

CaseChat Overview and Summary

In Timmins v Park, the applicant, Ms Timmins, sought orders for the removal of vegetation on the respondent's property and compensation for damage to her sewer line. The vegetation in question was a vine, specifically identified as Bougainvillea, growing along the boundary fence between the two properties. Ms Timmins claimed that the roots from this vegetation had infested her sewer line, causing blockages and damage, and had led to effluent seepage onto the respondent's property.

The primary legal issue before the court was whether the vegetation in question constituted a "tree" under the Trees (Disputes Between Neighbours) Act 2006, which would confer jurisdiction on the Land and Environment Court. The court examined the nature of the vegetation, the relevant legislation, and the case law to determine if vines like Bougainvillea qualified as trees for the purposes of the Act. The court noted that at the time of the application, vines were not considered trees under the Act, referencing the decision in Buckingham v Ryder.

The court concluded that, as the vegetation causing the damage was not a tree under the existing legislation, it did not have the jurisdiction to order its removal or to grant any other relief to Ms Timmins. The court also observed that the New South Wales Parliament had recently passed amendments to the legislation, which would redefine vines as trees. However, since the amendments had not yet come into effect, the court was unable to grant any relief in this instance but left open the possibility of a future application once the legislation was updated.

The Land and Environment Court of New South Wales dismissed Ms Timmins' application for lack of jurisdiction, noting that any future application could be considered once the legislative changes came into effect.

Orders