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 Hunter Water. As a consequence of that and matters that were discussed as a result of this (Ms Timmins having that blockage attended to), Mr Park caused the vegetation along approximately the rear third of the boundary fence to be poisoned - this being vegetation growing along and supported by the fence or chicken wire attached to the fence. As part of this, Mr Park has severed a major root of that vegetation - that root being located in the vicinity of Ms Timmins sewer pipe riser.

8 During the course of this morning's inspection, we have had the opportunity to look at the location of that vegetation root and at the location and nature of the vegetation that continues to grow on the two thirds of the fence from the roadway toward the west. As part of that, we have been shown (by Mr Park’s brother) the area where, on Mr Park’s brother’s evidence, there is an effluent seepage coming from the direction of Ms Timmins’ property on to Mr Park’s property. This is a seepage that it is located at a point commencing 2 or 3 m to the west of the major element of a plant, identified by Mr Berryman as being Bougainvillea, that is growing on Mr Park’s property and which is supported by the fence.

9 We are satisfied, on the uncontradicted evidence of Mr Park's brother and our own observations of it, that the seepage that we have inspected coming from the vicinity of the boundary is effluent. There is only one logical source of that effluent and that is Ms Timmins’ sewer line on her property. We are satisfied, to the extent necessary on the civil burden of proof, that the likely cause of that influence seepage is from a root infestation coming from the vegetation - that is either the Bougainvillea or the other vegetation growing on Mr Park’s property in the vicinity - there being, in our assessment, no other vegetation reasonably proximate that could conceivably be the cause of the relevant root infestation causing leakage from the sewer line.

10 As a consequence, we need then to turn - being satisfied that there is an effluent leakage caused by roots from Ms Timmins’ sewer line - to consider whether or not the vegetation that is causing that leakage is vegetation that would constitute a tree for the purposes of the Trees (Disputes Between Neighbours) Act 2006. Mr Berryman has drawn our attention to the decision in Buckingham v Ryder [2007] NSWLEC 458 that vines are not trees for the purposes of the Act. We are satisfied that, at the present time, that remains the law and certainly was at the time the application was made. The Bougainvillea and the other vegetation are vines. Therefore, as a consequence we do not have jurisdiction to make orders despite our findings of causation.

11 However, we observe, in addition, that, in the last several days, the New South Wales Parliament has passed the Trees (Disputes Between Neighbours) Amendment Act 2010 – amendments that include, amongst other provisions, an amendment to the Trees (Disputes Between Neighbours) Regulation 2007 to ensure that, from the time that change of the regulation comes into effect, vines will be declared to be trees for the purposes of the Act.

12 The effect of that change will be that, should Ms Timmins make some further application after that regulation has come into effect, the jurisdictional issue that has arisen on this occasion (that prevents us determining what relief if any should be made for the matters of causation with which we have dealt) would be removed and the Court would be able to hear and determine any new application.

13 However, as a consequence of all the foregoing, we are satisfied that, as the vegetation that is causing the damage to Ms Timmins’ sewer line is presently vegetation that is not within our competence to deal with (as we presently have no jurisdiction concerning vines), the application must necessarily be dismissed. We note that the making of that order does not preclude the making of some further application by Ms Timmins at some future time when the legislative change has occurred as I have indicated.

Tim Moore Phil Hewett