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
Source
Original judgment source is linked above.
Catchwords
TREES (DISPUTES BETWEEN NEIGHBOURS) - whether trees are situated on adjoining land, s7 not satisfiedjurisdiction not engagedno powers to make ordersapplication refused
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Judgment (6 paragraphs)
[1]
Background
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.
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.
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.
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.
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.
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.
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 or Ms Skvorc, it was inferred that this was September 2010, when Ms Wilson purchased the property.
Ms Wilson claims that a horticulturist friend inspected the property with her just after her purchase, and that no bamboo was growing on her land at this time. Real estate photographs provided by both parties display a very neat front lawn area but regrettably do not display the corner where the bamboo was allegedly growing.
Ms Wilson strongly disputed the content of Ms Minn's affidavit, but she did not request Ms Minn's appearance at the hearing for cross examination, notwithstanding this option was noted at point 15 of the Directions of the Court issued to the parties by the Registrar on 21 April 2022.
Ms Skvorc said a subsequent tenant alerted her to potential problems with the bamboo on her property in 2014, and she had it removed soon after. She claims that after a period of about a year of maintenance by her tenants, cutting and poisoning regrowth, her land was absent of bamboo, and has remained so since.
Ms Skvorc notes that Ms Wilson first approached her in 2018 or 2019, about paying for removing the bamboo on Ms Wilson's land, because it had been planted on Ms Skvorc's property by the respondent's tenant, and then spread onto and across Ms Wilson's land, and would cost thousands of dollars to remove.
The respondent approached Gosford Council and a free legal advice service. She claims that she was told that owners were responsible for their own lands, and that she phoned the applicant and informed her accordingly.
Ms Wilson next approached Ms Skvorc at her property on 21 August 2021, and again requested Ms Skvorc pay for the removal of bamboo on her land. Ms Skvorc again rejected this and re-iterated the advice she had received from Gosford Council.
Mainly as a result of normal wear and tear, the timber retaining wall between the properties has decayed and deteriorated, along with the timber fence that rises above the wall. Neither remain fit for purpose, but Ms Skvorc claimed that the applicant refused to negotiate about retaining wall or fence replacement until the bamboo issue was resolved.
The parties engaged in mediation through the Community Justice Service (CJC) but failed to reach agreement. As a consequence, Ms Wilson made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking to remedy damage that the trees have allegedly caused, are causing, or are likely to cause in the near future.
[2]
The onsite hearing
The hearing was conducted onsite on 24 May 2022, and both parties were self-represented.
The applicant's summarised proposed orders are;
1. excavation of the applicant's front and side yard to remove all the running bamboo, including all roots, at the respondent's expense.
2. installation of a new adjoining wall and (colour-bond) fence between the properties, as a result of damage by bamboo roots, at the respondent's expense.
3. installation of a new lawn in the applicant's front and side yard, at the respondent's expense.
4. removal and replacement of the retaining wall, at the respondent's expense.
5. respondent to reimburse application fee and any associated costs in bringing this application.
The respondent rejects Ms Wilson's claim that she is liable for damage caused by the bamboo to the applicant's property.
[3]
Jurisdictional requirements
Section 7 of the Act - Application to Court by affected land owner
An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Ms Wilson has made an application to the Court to remedy damage to her lawn and garden, and to a common boundary retaining wall and fence, as a result of rhizomatous bamboo on her property. The applicant claims that the respondent is liable to remedy this damage because the bamboo was initially planted on the respondent's land and subsequently spread onto the applicant's land.
While bamboo is considered to be a tree under the Act, I have no jurisdiction to make orders in this case because the trees are not "situated on adjoining land". Rather, they are situated on the applicant's land, and as a consequence, s 7 of the Act is not satisfied.
The respondent does not dispute that the bamboo originated on her land, but says it was removed in 2014, and that all roots were killed within a year by persistent poisoning. Date-stamped photos in Ms Skvorc's statement, attributed to her real estate agent, display the relevant garden area in June 2016 and November 2017, absent of bamboo. Ms Wilson did not challenge the validity of this evidence.
The bamboo was sufficiently established on Ms Wilson's land by 2016 to cause her to employ contractors to remove it. Regrettably, the contractors' workmanship was poor, and the bamboo rapidly returned.
Notwithstanding that Ms Wilson said the bamboo had caused damage to her lawn for many years prior, it was not until 2018 or 2019, about four years after Ms Skvorc removed her bamboo, that Ms Wilson first introduced herself to Ms Skvorc and informed her about bamboo damaging her property.
In the absence of notification by Ms Wilson, it is not reasonable for Ms Skvorc to have been aware of any problems with the bamboo. While rhizomatous bamboo often causes problems due to its spreading habit, many people value it for its screening capacity and aesthetic contribution and maintain it accordingly.
Section 4 of the Act may cover trees that have been removed from the respondent's land.
Section 4 of the Act - Act applies to trees on certain land
Section 4 of the Act considers the land to which the Act applies. Section 4(3) says:
For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.
Section 4(4) of the Act says:
Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred.
While s 4(4) of the Act thus deems a tree that has been removed still to be situated on land in certain circumstances, this does not extend to the circumstances of this case, because the respondent's bamboo was not "removed following damage or injury that gave rise to an application under Part 2".
Further, satisfaction of "…if the tree was situated wholly or principally on the land immediately before the damage or injury occurred", in s 4(4) of the Act, requires the owner of the tree to be aware of such damage or injury, either from an event (such as a tree shedding a branch) that makes damage or injury obvious, or as a result of notification by the affected party.
Here, no such 'event' occurred, and thus notification by the applicant is the only reasonable means for the respondent to be aware of any problems.
Given that Ms Skvorc removed her bamboo in 2014-15, about four years before any notification of damage by Ms Wilson, the circumstances here do not satisfy the requirements of s 4(4) of the Act. In contrast, Baker v Grabovac [2010] NSWLEC 1289 is an example where the requirements of s 4(4) of the Act are satisfied.
Ms Skvorc submitted that should orders be contemplated by the Court, any liability on her should be reduced by Ms Wilson's failure to maintain her own property, and failure to notify her of damage years earlier, when the extent of damage would likely have been far less.
Though Ms Wilson suffered extenuating circumstances that likely contributed to these failings, nonetheless, the Court, in contemplating orders, would be required to address these factors under s 12(i) of the Act, which considers "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant".
Ms Skvorc also argued that while the Court has no jurisdiction to consider the applicant's case, because Ms Skvorc claims that bamboo roots on the applicant's land are damaging the retaining wall and fence, the Court has jurisdiction to make alternative orders for Ms Wilson to replace the wall and fence, at Ms Wilson's expense.
The Court has no jurisdiction to make such alternative orders because Ms Skvorc has not submitted an application to the Court. Therefore, the respondent has not satisfied s 7 of the Act, which says:
An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
[4]
Conclusion
This is an unfortunate situation where both parties seek orders to resolve a difficult dispute, but the circumstances of this situation do not satisfy the fundamental jurisdictional requirements of s 7 of the Act, nor the particular conditions considered in s 4(4) of the Act. As a consequence, I have no powers to make orders, other than refusing the application.
[5]
Orders
The orders of the Court are:
1. The application is refused
…………………………………
[6]
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Decision last updated: 25 July 2022