Song v Hackney (No 2)

[2016] NSWLEC 155

Land and Environment Court

New South Wales

Medium Neutral Citation:	Song v Hackney (No 2) [2016] NSWLEC 155
Hearing dates:	6 December 2016
Date of orders:	09 December 2016
Decision date:	09 December 2016
Jurisdiction:	Class 2
Before:	Sheahan J
Decision:	There will be no order as to costs
Catchwords:	COSTS – “fair and reasonable” – circumstances of the case
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Land and Environment Court Rules 2007
Cases Cited:	Burns & anor v St Clair & anor (No 2) [2015] NSWLEC 115 Fox v Ginsberg (No 3) [2011] NSWLEC 139 Patane V Singh and Anor [2016] NSWLEC 13 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Song v Hackney [2016] NSWLEC 1512 Yang v Scerri [2007] NSWLEC 592
Category:	Costs
Parties:	Olivia Yan Song (Applicant) Michelle Hackney (Respondent)
Representation:	Counsel: Ms V McWilliam, barrister (Applicant) Mr D Williams, solicitor (Respondent)   Solicitors: Juris Cor Legal (Applicant) Whitehead Cooper Williams (Respondent)
File Number(s):	2016/00199993

Judgment

Background

1. The respondent to these Class 2 proceedings seeks an order in her favour following dismissal of the application by Acting Commissioner Fakes on 2 November 2016: Song v Hackney [2016] NSWLEC 1512.

2. The facts of that case were summarised by Acting Commissioner Fakes in her judgment (at [1]) as follows:

The applicant, Ms Song, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Liquidambar trees and the payment of $63,729.20 for losses arising from, or incidental to, damage to her property allegedly caused by the trees. The damage is said to be damage to the applicant’s sewer pipes. Ms Song is also concerned that if the trees are not removed, then it is very likely that roots from the trees will infiltrate the pipes and cause them to burst again.

3. In her judgment dismissing the application, Acting Commissioner Fakes traced, at some length ([2] – [22]), the history of the dispute and attempts to resolve it. She then made the following findings in her judgment at [26] – [34]:

26   I concur with [Hackney’s consulting arborist Mark] Hartley that roots from the two Liquidambars may have entered the applicant’s sewer and contributed to the blockages. As the trees are aprobable cause of damage, the jurisdictional test in s 10(2) is satisfied and the Court’s powers under s 9 of the Trees Act to consider what if any orders should be made are engaged.

27   Before making orders, the Court must consider relevant matters under s 12 of the Act. In this matter, s 12(h) is most relevant – that is, anything other than the tree that may have contributed to the damage, any acts or omissions by the applicant, and steps taken by either party to rectify or prevent the damage.

28   I am prepared to accept that roots from one or more of the other plants growing on each of the parties’ properties…