Timmins v Park [2011] NSWLEC 1308

Timmins v Park [2011] NSWLEC 1308

The Court had jurisdiction because, although the vines had largely been removed, parts of the trunk and root system of the bougainvillea remained on Mr Park's side of the boundary and constituted a tree to which the Act applied. The applicant had made reasonable efforts to resolve the dispute and the respondent had notice. On the evidence, roots from the vines were a cause of the sewer blockage cleared in December 2008 and contributed to cracking of the concrete pathway, satisfying s10(2)(a) for those items. However, the age and condition of the earthenware sewer and the age and construction of the pathway justified apportionment only. The evidence did not establish that the vines caused...

Jurisdiction
Australia
Judgment Date
31 October 2011
Procedural Posture
Class 2 Tree Dispute Application Under S7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing
Outcome
Application upheld in part
Legal Topics
['damage to Sewer Pipes by Roots' 'damage to Concrete Pathway' 'vines as Trees Under the Act' 'neighbouring Land' 'compensation and Rectification Orders']
['trees Disputes Between Neighbours' 'property Damage' 'land and Environment Court Jurisdiction'] ['damage to Sewer Pipes by Roots' 'damage to Concrete Pathway' 'vines as Trees Under the Act' 'neighbouring Land' 'compensation and Rectification Orders']

Case Brief

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Procedural Posture

Class 2 Tree Dispute Application Under S7 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court had jurisdiction where the relevant plants were vines and had largely been removed before the present application was made.' "Whether vines on the respondent's land caused, were causing, or were likely in the near future to cause damage to the applicant's sewer, concrete pathway or fence." 'Whether the respondent should be ordered to compensate the applicant for clearing the sewer blockage and contribute to replacement of the pathway.' 'Whether any order should be made for replacement of the dividing fence.']

Ratio Decidendi

The Court had jurisdiction because, although the vines had largely been removed, parts of the trunk and root system of the bougainvillea remained on Mr Park's side of the boundary and constituted a tree to which the Act applied. The applicant had made reasonable efforts to resolve the dispute and the respondent had notice. On the evidence, roots from the vines were a cause of the sewer blockage cleared in December 2008 and contributed to cracking of the concrete pathway, satisfying s10(2)(a) for those items. However, the age and condition of the earthenware sewer and the age and construction of the pathway justified apportionment only. The evidence did not establish that the vines caused...

Court Disposition

Application upheld in part

Orders

  • ['The respondent is to pay the applicant the sum of $425 within 30 days of the date of these orders.' 'The applicant has 30 days to obtain and provide to the respondent 3 quotes for the replacement of the concrete pathway.' 'In that time the respondent may choose to obtain his own quotes. In doing so the applicant...