Adamski v Betty

[2007] NSWLEC 200

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Adamski v Betty [2007]  NSWLEC 200

PARTIES:
APPLICANTS
Caesar & Jolanta Adamski

RESPONDENT
Dorothy Betty

FILE NUMBER(S):    20087  of        2007

CATCHWORDS:       Trees (Neighbours) :- Bunya Pine cones
Risk of injury to persons

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

CORAM:        Moore CFakes AC

DATES OF HEARING:          10 April 2007

EX TEMPORE DATE:           10 April 2007

LEGAL REPRESENTATIVES

APPLICANTS
In person

RESPONDENT
Mr J Johnson, solicitor
Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

10 April 2007

07/20087             Caesar & Jolanta Adamski v Dorothy Betty

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site at type="1">

THE COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located at 27 Braeside Street, Wahroonga.

1. The applicants, Mr and Mrs Adamski, reside at 31 Braeside Street, Wahroonga which is adjacent to the property containing the trees, despite the non sequential numbering. 

2. The two trees that are involved are substantial mature specimens of a Silky Oak (Grevillia robusta) which is on 27 Braeside Street toward the rear boundary of 31 Braeside Street and a Bunya Pine (Araucaria bidwillii) located on 27 Braeside Street near the northeastern corner of that allotment at approximately 60 percent of the depth of 31 Braeside Street from its frontage to the street.

1. We turn first to the question of the Silky Oak.

2. We have considered the evidence which has been provided by expert arborists on behalf of both the applicants and the respondent, Mrs Betty. That evidence is to the general effect that the tree is a significantly mature tree; it is in a satisfactory and healthy state; and that there is no immediate probability of any significant branch failure from any of its limbs.  We accept that evidence.

3. The application that is now pressed with respect to the Silky Oak is that the branches of the tree which overhang the Adamski property should be trimmed by Mrs Betty  at the boundary of her property. That would now satisfy the concerns that Mr and Mrs Adamski have with respect to the Silky Oak. 

1. In this context, it is appropriate for the Court to note that fears that are held (which are honestly held) must, for the Court to have regard to them and take action with respect to them, first not merely be fears that are honestly…