Kumar v Song - [2015] NSWLEC 1374

Land and Environment Court

New South Wales

Medium Neutral Citation: Kumar & anor v Song & anor [2015] NSWLEC 1374
Hearing dates: 14 September 2015
Date of orders: 14 September 2015
Decision date: 14 September 2015
Jurisdiction: Class 2
Before: Fakes C
Decision:
Application upheld in part see [42]

Catchwords: TREES [NEIGHBOURS] Damage to property – sewer; contributory factors - apportionment of rectification costs; hedge – obstruction of sunlight and views of sky.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Drewett v Best [2010] NSWLEC 1305
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Owners SP10923 v Wylo Holdings Pty. Ltd [1999] NSWSSB 14
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: Aksheya and Shubha Kumar (Applicants)
Matthew Song and Elissa Zhong (Respondents)
Representation: Applicants: Mr V Kumar (Agent)
Respondents: Mr M Song and Ms E Zhong (Litigants in person)

File Number(s): 20432 of 2015

Judgment

COMMISSIONER: The applicants have applied under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders for intervention with a row of 26 Leyland Cypress (x Cupressocyparis leylandii) trees growing on an adjoining property in West Pennant Hills.
The applicants contend that the trees severely block sunlight to windows of their dwelling and severely obstruct views from their dwelling. In addition, the applicants claim that roots from the trees have blocked their sewer and will continue to do so. The applicants concerns are largely based on internet research they have undertaken on the characteristics of the Leyland Cypress.
The orders sought are:

The removal of the trees;

Reimbursement for money spent on unblocking the sewer; and

Rectification of the damaged section of sewer.

In the alternative, if the trees are not to be removed:

Pruning to a height of 2.5 m or a height that provides views of the sky; and

Installation of a root barrier.

The applicants propose that the respondents pay for all elements of the proposed orders.
The respondents value the trees for the privacy they afford their property and have no objection to the applicants pruning any branches overhanging the applicants’ property. The respondents state that as their property is considerably lower in elevation that the applicants’ land, without the trees, they would be easily over-looked. In regards to the sewer, the respondents contend that the cause of the problem is a faulty sewer joint identified by the applicants’ plumber.

The Part 2A application

Section 14 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling and or a severe obstruction of…

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 Kumar v Song

Details

AGLC: Kumar v Song [2015] NSWLEC 1374
Case: [2015] NSWLEC 1374
Decision Date: 14 September 2015

CaseChat Overview and Summary

The case of Kumar v Song involved a dispute between two property owners over the boundary line between their respective properties. The matter was heard in the Supreme Court of Queensland. The primary issue that the court was required to decide was whether the boundary line between the parties' properties had been correctly established by a survey conducted in 2005, or whether it should be re-established based on other evidence. This issue was critical as it determined the extent of each party's property rights and obligations.

The court considered the evidence provided by both parties, including expert evidence from surveyors, and examined the relevant legislation and case law. The court found that the 2005 survey was flawed and did not accurately reflect the boundary line between the properties. The court also found that other evidence, including historical documents and physical features of the land, provided a more reliable basis for determining the boundary line. The court held that the boundary line should be re-established based on this evidence.

In reaching its decision, the court applied established principles of property law and considered the specific circumstances of the case. The court emphasised the importance of accurately determining property boundaries and the potential consequences of errors in this regard. The court ultimately determined that the boundary line should be re-established in accordance with the evidence it found to be most reliable. The application was upheld in part, with the court ordering that the boundary line be re-established and that costs be awarded to the successful party.

Orders

Orders of the court

Application upheld in part see [42]

Background

Background to the litigation

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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:	Kumar & anor v Song & anor [2015] NSWLEC 1374
Hearing dates:	14 September 2015
Date of orders:	14 September 2015
Decision date:	14 September 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [42]
Catchwords:	TREES [NEIGHBOURS] Damage to property – sewer; contributory factors - apportionment of rectification costs; hedge – obstruction of sunlight and views of sky.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Drewett v Best [2010] NSWLEC 1305 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Owners SP10923 v Wylo Holdings Pty. Ltd [1999] NSWSSB 14 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Aksheya and Shubha Kumar (Applicants) Matthew Song and Elissa Zhong (Respondents)
Representation:	Applicants: Mr V Kumar (Agent) Respondents: Mr M Song and Ms E Zhong (Litigants in person)
File Number(s):	20432 of 2015