Buckingham v Ryder

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

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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.

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 Port St John Creeper. It is this later plant about which Ms Buckingham makes her complaint and whose removal she seeks be ordered.

8 The two plants are described, in such technical information as I have, as being climbers. The Port St John Creeper is particularly the subject of an extract in Mr Higgins's report from a book entitled "What flower is that?" written by Mr Stirling Macoboy. The extract reads: A showy evergreen climber from Southern Africa, the Pink Trumpet vine or Podranea ricasoliana bears masses of rosy-mauve trumpet flowers over many weeks in summer. …….. Podranea needs the support of a strong pergola or fence and it is inclined to be rampant…….

9 The locational report from Mr Higgins makes it clear that the stem of the Port St Johns Creeper is located at a distance of 200 mm from the edge of Ms Buckingham's wall - that is, the outer end of the stem is 200 mm from her wall and 150 mm from end of the exposed footing to that wall. The diameter of its stem at 100 mm above ground level is approximately 60 mm.

10 I have in evidence, from Ms Ryder, a Certificate of Survey provided by S Bland Pty Ltd, Consulting Surveyors, dated of 25 June 1987 that shows that Ms Buckingham's wall is located between 80 and 130 mm from the boundary of her property with Ms Ryder's property.

11 On the information that I have from that survey and from Mr Higgins' report, I am unable to be satisfied that the Port St John's Creeper is not situated principally on Ms Ryder's property. Situated wholly or principally is the relevant test set by s 4(3) of the Act.

12 If the matter were to proceed beyond this point, I need to require an exact survey of the location of the plant.

13 However, I must also turn to consider the question of whether or not the plant is a tree within the meaning of the Act.

14 The definition of tree contained in the Act, in s 3(1), reads as follows: tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.

15 As far as I have been able to ascertain it, New South Wales Parliamentary Counsel has dealt with a concept of a "tree" in a variety of fashions in a range of legislative instruments.

16 These include, at their most simple, definitions such as that contained in the Electricity Supply Act 1995, in s 48, which says: tree includes shrub and plant.

17 The definition in the Forestry Act 1916 is modestly more expansive and reads:

Tree means a tree of any description and includes a sapling and a seedling of a tree.

18 The Dictionary to the Rural Lands Protection Act 1998 also adopts this approach.

19 The Electricity Supply (General) Regulation 2001, in s 101, goes somewhat further and defines a tree as being: Tree means a tree taller than 3 metres, or having a canopy more than 3 metres in maximum diameter or having a trunk with a circumference at a height of 1 metre from the ground of more than 0.3 metres.

20 The most the expansive definition that I have been able to find is contained in s 4 of the Rural Fires Act 1997, which reads: Tree includes bush, shrub, scrub, timber, grass or vegetative or other material.

21 I am satisfied there is no consistent drafting approach to the definition of tree in this state's statutory enactments. In the absence of any consistent legislative treatment of the definition, it is appropriate to seek guidance elsewhere.

22 As Preston CJ noted in Environment Protection Authority v Hardt (2006) 148 LGERA 61, [2006] NSWLEC 438, at para 72, it is appropriate to seek a construction which accords with a purposive and contextual approach.

23 In the absence of any determined case that I have been able to find that gives firm guidance on what should be the meaning of the definition in this context, I am satisfied that I should consider the definition contained in this legislation as a whole and what arises from the use of the expression "any plant resembling a tree in form".

24 I have therefore turned to the Oxford English Dictionary for a definition of a tree. Two relevant elements arise from the Dictionary's definition. These elements of the definition of tree are: (a) A perennial plant having a self-supporting woody main stem or trunk (which usually develops woody branches at some distance from the ground), and growing to a considerable height and size. (Usually distinguished from a bush or shrub by size and manner of growth; but cf. (b.) (b) Extended to include bushes or shrubs of erect growth and having a single stem; and even some perennial herbaceous plants which grow to a great height, as the banana and plantain.

25 I have carefully read all of the material that is provided to me by Ms Buckingham, including a statement by Mr Graham Buckingham, her brother, which sets out a number of matters relating to the plant.

26 Particularly, at paragraph 10 of that statement, Mr Buckingham attests to the fact that, when he had cut through some elements of the particular plant known as the Port St Johns Creeper: "The weight of the plant and the way that it has been trained to grow caused it to peel away from wall of one solid sheet plant and hang at an angle into the property of 66 Windsor Road".

27 This evidence is on all fours with the evidence given in Mr Higgins' statement.

28 I am therefore satisfied that the plant is not a self-supporting one and this is inconsistent with the definition contained in the Oxford English Dictionary.

29 Although there maybe some different circumstances with Australian Indigenous plants such as the Strangler Fig (Ficus watkinsiana) - a plant which, over time, evolves from be a vine into a tree as it overtakes its host, this is not the case with the present plant.

30 I am satisfied that I should read the definition of tree in the Act in a purposive fashion and adopt the elements rendered necessary by requiring consistency with the dictionary definition set out above.

31 I am satisfied, therefore, that the present plant is not a tree within the meaning of the Act - it is merely a climbing vine. 32 I am also satisfied, as a general proposition, that vines cannot be regarded as trees for the purpose of founding applications pursuant to s 7 of the Act.

33 The question of access to Ms Rider's property for necessary maintenance purposes, if there be such purpose, is not something to be achieved using the Act.

34 Provisions for access to neighbouring land are dealt with by the Access to Neighbouring Land Act 2000 which provides, in s 7 of that Act, that a person may apply to a Local Court for an order permitting access to a neighbour's property and s 7(2) makes it clear that such order for access can be made by the Local Court even if it is opposed by the owner of the land to which access is sought.

35 Finally, the provisions of s 12 of that Act makes it clear that a wide range of purposes are permitted to be facilitated by that legislation including the carrying out of construction, repairs, maintenance, improvements, decoration, alteration and demolition of buildings and other structures.

36 It would seem to me that, if Ms Buckingham is to make some application, it is one more pertinently dealt with by a Local Court pursuant to that legislation than by this Court pursuant to the Trees (Disputes Between Neighbours) Act 2006.

37 The application pursuant to the Trees (Disputes Between Neighbours) Act 2006 is therefore dismissed.

01/11/2007 - Omitted word (para 16) spelling (para 29) - Paragraph(s) 16 and 29

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