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 or Ms Skvorc, it was inferred that this was September 2010, when Ms Wilson purchased the property. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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.