Kumar & anor v Song & anor [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 1. 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. 2. 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. 3. 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. 1. 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. 1. The applicants propose that the respondents pay for all elements of the proposed orders. 2. 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.