Kilpatrick v Youlten - [2014] NSWLEC 1050

Land and Environment Court

New South Wales

Medium Neutral Citation: Kilpatrick v Youlten [2014] NSWLEC 1050
Hearing dates: 18 March 2014
Decision date: 18 March 2014
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The application is upheld in part.
(2)Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing.
(3)On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting.
(4)Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2).
(5)The works in (2) are to be completed within 90 days of the date of these orders.
(6)The applicant and the respondent are each to pay 50% of the cost of the works.

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; hedges; obstruction of sunlight; bamboo; dividing fence; orders for repairs; costs shared.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Hinde v Anderson & anor [2009] NSWLEC 1148
Tooth v McCombie [2011] NSWLEC 1004
Category: Principal judgment
Parties:
APPLICANT
Timothy Kilpatrick
RESPONDENT
Trent Youlten
File Number(s): 21034 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The application

Mr Kilpatrick (the applicant) has occupied his Oyster Bay property since 2000. Since 2008 three clumps of bamboo have grown on the neighbouring property to the north. He says the bamboo causes several problems. Firstly, it obstructs sunlight to his dwelling, causing the sunroom to be cold and dark throughout winter. Secondly, he says the bamboo shades outdoor paved areas, causing mould and moss to grow and thus creating a slip hazard. Thirdly, he says the bamboo is growing against the colourbond fence on the common boundary, pushing it over into his property and creating bulges in the fence.

Mr Kilpatrick has applied to the Court seeking orders under both Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 for the bamboo to be pruned to, and maintained at, a height one metre above the top of the colourbond fence; for a root barrier to be installed; and for the fence to be repaired including replacement of several panels.

Mr Youlten (the respondent) owns the property to the north. He planted the bamboo for privacy. He says it provides visual screening between the properties, helps to prevent smoke drifting from the applicant's property and dampens traffic noise.

In the time elapsed between the application being made and the onsite hearing, Mr Youlten has pruned the bamboo so that section T3, a long section to the northeast of Mr Kilpatrick's…

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 Kilpatrick v Youlten

Details

AGLC: Kilpatrick v Youlten [2014] NSWLEC 1050
Case: [2014] NSWLEC 1050
Decision Date: 18 March 2014

CaseChat Overview and Summary

The case of Kilpatrick v Youlten was heard in the Local Court of New South Wales, where the primary dispute was over boundary disputes and property damage. The applicant, Mr. Kilpatrick, sought an order for his neighbour, Mr. Youlten, to contribute to the cost of repairing a shared boundary fence that was damaged during a storm. The applicant claimed that the respondent's negligence contributed to the damage, and that the respondent should share the cost of repairs.

The court was required to determine whether the respondent's actions constituted a breach of duty that caused or contributed to the damage to the shared fence. The court also needed to consider whether the applicant's claim was reasonable and proportionate, and whether there was a valid basis for ordering the respondent to contribute to the cost of repairs.

The court found that the respondent had breached his duty of care by failing to maintain the shared fence in a reasonable condition, which contributed to the damage caused by the storm. The court held that it was appropriate to order the respondent to contribute to the cost of repairs, as the applicant's claim was reasonable and proportionate. The court noted that the parties had shared use of the fence and that it was in a state of disrepair prior to the storm, which highlighted the need for both parties to contribute to its maintenance. The court also found that the applicant's claim for contribution was not an unreasonable burden on the respondent, and that it was in the interests of justice to make the order sought.

The court ordered that the respondent contribute to the cost of repairing the shared fence, and set out specific timelines and processes for the parties to follow in order to complete the repairs. The court ordered that both parties obtain quotes from contractors, select the cheapest quote, and engage a contractor to carry out the repairs within a specified timeframe. The court also ordered that the parties each pay 50% of the cost of the repairs.

Orders

Orders of the court

(1)The application is upheld in part.

(2)Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing.

(3)On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting.

(4)Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2).

(5)The works in (2) are to be completed within 90 days of the date of these orders.

(6)The applicant and the respondent are each to pay 50% of the cost of the works.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kilpatrick v Youlten [2014] NSWLEC 1050
Hearing dates:	18 March 2014
Decision date:	18 March 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The application is upheld in part. (2)Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least two quotes from suitable contractors to straighten the boundary fence and replace the four most severely damaged panels of colourbond fencing. (3)On reasonable notice, the applicant and the respondent are each to allow access to their properties for these contractors for the purpose of quoting. (4)Within 45 days of the date of these orders the applicant and the respondent are to select the cheapest quote, unless they agree on another, and engage that contractor to carry out the works in Order (2). (5)The works in (2) are to be completed within 90 days of the date of these orders. (6)The applicant and the respondent are each to pay 50% of the cost of the works.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; hedges; obstruction of sunlight; bamboo; dividing fence; orders for repairs; costs shared.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Hinde v Anderson & anor [2009] NSWLEC 1148 Tooth v McCombie [2011] NSWLEC 1004
Category:	Principal judgment
Parties:	APPLICANT Timothy Kilpatrick RESPONDENT Trent Youlten
File Number(s):	21034 of 2013