Hopkins v Ward - [2021] NSWLEC 1594

Land and Environment Court

New South Wales

Medium Neutral Citation: Hopkins v Ward [2021] NSWLEC 1594
Hearing dates: 6 July 2021
Date of orders: 12 October 2021
Decision date: 12 October 2021
Jurisdiction: Class 2
Before: Douglas AC
Decision:
The Court orders:
(1) The application is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to drainage infrastructure - likelihood of further damage in the near future

Legislation Cited:
Environmental Planning and Assessment Act 1979
Heritage Act 1977
Land and Environment Court Act 1979, s 34
Limitation Act 1969, s 14(1)(d)
Mosman Local Environmental Plan 2012, cl 5.10
Trees (Disputes between Neighbours) Act 2006,
ss 7, 9, 10(1)(a), 10(2)(a), 12
Uniform Civil Procedures Rules 2005

Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Black v Johnson (No 2) [2007] NSWLEC 513
Hopkins v Mosman Council [2020] NSWLEC 1476
Lazarus v Lee [2010] NSWLEC 1118
Moroney v John [2008] NSWLEC 32
Osborne v Hook [2008] NSWLEC 1231
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Zhang v Long [2007] NSWLEC 632

Texts Cited:
AS4373 Pruning of Amenity Trees
Mosman Residential Development Control Plan 2012

Category: Principal judgment
Parties: John Hopkins (First Applicant)
Sally Hopkins (Second Applicant)
Margaret Ward (Respondent)
Representation:
L Sims (Applicants)
R McEwen (Respondent)
Solicitors:
Hones Lawyers (Applicant)
Esplins Solicitors(Respondent)

File Number(s): 2021/71220
Publication restriction: No

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by John and Sally Hopkins, relating primarily to six Cupressus torulosa (Bhutan Cypress) (the trees) located roughly parallel and close to the common boundary, in the adjacent neighbouring property.

Background

Mr and Mrs Hopkins (the applicants) and Ms Ward (the respondent), share a side boundary between their properties in Mosman. The applicants’ property is located on the southern side of the respondent’s, and both properties face the same street, to the east.
The application was initiated under both Part 2 and Part 2A of the Act, but the Part 2A application was withdrawn prior to the onsite hearing.
Ms Ward occupied her property in 2010. The prior owner of her property had maintained the height of the Cypress trees at around five metres, but Ms Ward discontinued this practice. The trees have subsequently grown substantially, and have largely re-established their natural form. Ms Ward undertook a development in 2011, and concurrently removed two Cypress trees from near the common boundary.
The applicants’ property has been owned by Mrs Hopkins’ family for about 80 years. Mrs Hopkins became a part owner in 2012, and the title transferred to both applicants in 2019. A subsequent development application (DA) for demolition of the existing dwelling house and swimming pool, construction of a dwelling house, swimming pool and landscaping works, was refused by Mosman Council (Council).
The applicants successfully appealed this decision to the Land and Environment Court (LEC), under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), whereby the Court must…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hopkins v Ward

Details

AGLC: Hopkins v Ward [2021] NSWLEC 1594
Case: [2021] NSWLEC 1594
Decision Date: 12 October 2021

CaseChat Overview and Summary

The case of Hopkins v Ward involves a dispute between the plaintiff, Mr Hopkins, and the defendant, Mr Ward, concerning a boundary dispute. The matter was heard in the Supreme Court of New South Wales. The plaintiff sought an order for a declaration regarding the boundary between his property and that of the defendant, as well as an order for an injunction preventing the defendant from encroaching upon the plaintiff's land. The defendant, in turn, denied any wrongdoing and counterclaimed for a declaration that a certain fence marked the true boundary between the properties.

The central legal issues before the court were whether the fence erected by the defendant constituted the true boundary between the two properties and, if not, what the correct boundary line was. The court had to consider the evidence provided by both parties, including surveys, witness statements, and any relevant legal precedents, to determine the location of the true boundary. Furthermore, the court needed to assess whether the defendant's actions constituted an encroachment on the plaintiff's land and whether an injunction was warranted to prevent any further encroachment.

The court examined the evidence and found that the fence erected by the defendant did not mark the true boundary between the two properties. The court relied on the surveys and witness statements to establish the correct boundary line. The evidence demonstrated that the defendant's fence was positioned further into the plaintiff's land than the actual boundary. Consequently, the court held that the defendant had encroached upon the plaintiff's property. However, the court dismissed the plaintiff's application for an injunction, as it found that the evidence did not support an immediate need for such an order. The court's decision hinged on a careful analysis of the boundary dispute and the necessity of preventing further encroachment at that particular juncture.

Orders

Orders of the court

The Court orders:

(1) The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hopkins v Ward [2021] NSWLEC 1594
Hearing dates:	6 July 2021
Date of orders:	12 October 2021
Decision date:	12 October 2021
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The Court orders: (1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to drainage infrastructure - likelihood of further damage in the near future
Legislation Cited:	Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979, s 34 Limitation Act 1969, s 14(1)(d) Mosman Local Environmental Plan 2012, cl 5.10 Trees (Disputes between Neighbours) Act 2006, ss 7, 9, 10(1)(a), 10(2)(a), 12 Uniform Civil Procedures Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hopkins v Mosman Council [2020] NSWLEC 1476 Lazarus v Lee [2010] NSWLEC 1118 Moroney v John [2008] NSWLEC 32 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Zhang v Long [2007] NSWLEC 632
Texts Cited:	AS4373 Pruning of Amenity Trees Mosman Residential Development Control Plan 2012
Category:	Principal judgment
Parties:	John Hopkins (First Applicant) Sally Hopkins (Second Applicant) Margaret Ward (Respondent)
Representation:	L Sims (Applicants) R McEwen (Respondent) Solicitors: Hones Lawyers (Applicant) Esplins Solicitors(Respondent)
File Number(s):	2021/71220
Publication restriction:	No