Kumar & anor v Song & anor [2015] NSWLEC 1374

Kumar & anor v Song & anor [2015] NSWLEC 1374

The Part 2A claim failed because the alleged loss of direct sunlight was principally due to the southerly orientation of the windows rather than the trees, and even if views of the sky were obstructed, the respondents' privacy, the trees' health and contribution to embankment stability outweighed the applicants' interest in interference with the trees. The Part 2 claim succeeded only in part because roots from one or more respondents' trees had caused damage to the applicants' sewer near the toilet, but a defective joint enabled root ingress, so removal of the trees or a root barrier was not warranted and the respondents were required to contribute 50% to sewer clearing and rectification...

Jurisdiction
Australia
Judgment Date
14 September 2015
Procedural Posture
Class 2 Application Under S 7 Part 2 and S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment
Outcome
Application upheld in part.
Legal Topics
['damage to Property by Tree Roots' 'blocked Sewer' 'hedges Obstructing Sunlight and Views' 'apportionment of Rectification Costs' 'tree Removal and Pruning Orders' 'root Barrier']
['trees Disputes' 'land and Environment' 'neighbour Disputes'] ['damage to Property by Tree Roots' 'blocked Sewer' 'hedges Obstructing Sunlight and Views' 'apportionment of Rectification Costs' 'tree Removal and Pruning Orders' 'root Barrier']

Case Brief

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Procedural Posture

Class 2 Application Under S 7 Part 2 and S 14 B Part 2 a of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment

Legal Issues

  1. 1 ['Whether the row of 26 Leyland Cypress trees was a hedge to which Part 2A of the Trees (Disputes Between Neighbours) Act 2006 applies.' "Whether the trees severely obstructed sunlight to windows of the applicants' dwelling." "Whether the trees severely obstructed views from the applicants' dwelling such that orders should be made." "Whether roots from the respondents' trees caused damage to the applicants' sewer or could in the near future cause further damage." 'Whether removal of the trees, pruning, installation of a root barrier, reimbursement, or rectification orders were warranted.']

Ratio Decidendi

The Part 2A claim failed because the alleged loss of direct sunlight was principally due to the southerly orientation of the windows rather than the trees, and even if views of the sky were obstructed, the respondents' privacy, the trees' health and contribution to embankment stability outweighed the applicants' interest in interference with the trees. The Part 2 claim succeeded only in part because roots from one or more respondents' trees had caused damage to the applicants' sewer near the toilet, but a defective joint enabled root ingress, so removal of the trees or a root barrier was not warranted and the respondents were required to contribute 50% to sewer clearing and rectification...

Court Disposition

Application upheld in part.

Orders

  • ['The application under s 14B Part 2A is dismissed.' 'The application pursuant to s 7 Part 2 is upheld in part.' 'Within 30 days of the date of these orders, the respondents are to reimburse the applicants the sum of $206.25 being 50% of the invoice dated 02/02/2015 for clearing the sewer.' 'Within 40 days of the...