Wilson v Skvorc

[2022] NSWLEC 1392

Land and Environment Court

New South Wales

Medium Neutral Citation:

Wilson v Skvorc [2022] NSWLEC 1392

Hearing dates:

24 May 2022

Date of orders:

25 July 2022

Decision date:

25 July 2022

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The orders of the Court are:

1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – whether trees are situated on adjoining land, s7 not satisfied; jurisdiction not engaged; no powers to make orders; application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006; s 7, s 4(3), s 4(4), s 12

Cases Cited:

Baker v Grabovac [2010] NSWLEC 1289

Category:

Principal judgment

Parties:

Karla Wilson (Applicant)
Kristina Skvorc (Respondent)

Representation:

K Wilson, self-represented (Applicant)
K Skvorc, self-represented (Respondent)

File Number(s):

2022/51858

Publication restriction:

No

Judgment

Background

1. COMMISSIONER: Since 2010, Karla Wilson, the applicant, has shared a property boundary with the respondent, Kristina Skvorc, on the central coast in leafy Green Point. The applicant’s property is located at the end of an ascending small close, and her front boundary borders the respondent’s northern side boundary, where the respondent’s land slopes down gently from east to west.

2. To the east of her driveway, Ms Wilson’s property is about 700mm above the respondent’s land, and a timber retaining wall was built along this boundary to bridge the height difference between properties.

3. Ms Skvorc has owned her land since 1993. In her signed Statement of 16 May 2022 Ms Skvorc says that she had a house built in 1997, and a photograph attached to her Statement shows the retaining wall already in situ when the house was constructed. Ms Skvorc said it was probably built not long prior.

4. The respondent’s house has been leased since it was new. In a signed affidavit of 12 May 2022, Jenny Minns, a tenant from 1998 till about 2012, said she planted bamboo cuttings in 2005 in “an elevated area between two retaining walls”, and a marked photograph (photo) attached to her affidavit shows this location on the respondent’s land, near the south-east corner of the applicant’s property. Once the bamboo established and spread, rhizomes grew across the common boundary.

5. Though she could not remember when, Ms Minns notes discussing the bamboo with a male prior owner of the applicant’s property, specifically as to whether the bamboo incursion was okay, and offering to remove “the bamboo runners”, if he wished her to do so.

6. Ms Minns claimed that the previous owner of the applicant’s property said, “No, that is OK, it will fill that part of the garden” and, in saying this, he indicated the south-east corner of his garden, beside where the fences join between his property and the property of both the respondent and his east side neighbour.

7. Ms Minns submitted that as a consequence, when this owner sold the property to “a woman”, a “bamboo bush” was already established in the corner of his property, “adjoining where I had planted the bamboo” on the respondent’s land. Though not clarified by either Ms Minns…