Adamski v Betty (No 2) - [2007] NSWLEC 330

Land and Environment Court

of New South Wales

CITATION: Adamski v Betty (No 2) [2007] NSWLEC 330

PARTIES:
APPLICANTS
Ceasar & Jolanta Adamski
RESPONDENT
Dorothy Betty

FILE NUMBER(S): 20087 of 2007

CORAM: Moore C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Application to re-open

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: VAW (Kurri Kurri) Pty Limited v Scientific Committee [2003] 128 LGERA 419;
Autodesk Inc & Anor v Dyason & Ors [1993] 176 CLR 300;
Red Sea Investments Pty Limited v Ku-ring-gai Council (No 2) [2005] NSWLEC 490

DATES OF HEARING: 19 April 2007

EX TEMPORE JUDGMENT DATE: 19 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

19 April 2007

20087 of 2007 Ceasar & Jolanta Adamski v Dorothy Betty

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

1 COMMISSIONER MOORE: In this matter, on Tuesday 10 April, Acting Commissioner Fakes and I attended the site upon which the Bunya Pine (Araucaria bidwillii) is located at 27 Braeside Street, Wahroonga and the adjoining property owned by Mr and Mrs Adamski at 31 Braeside Street. During the course of that day, we gave an extemporaneous decision concerning a Silky Oak (Grevillia robusta) (a tree which does not detain us on this occasion) and the Bunya Pine.

2 We reached a number of conclusions on that occasion – the principal one of which was that removal of the Bunya Pine was not warranted but that an annual cone removal activity at a period between mid-October and mid-December should be undertaken each year.

3 We then proposed that the orders of the Court would specify both the qualifications of the persons undertaking the cone removal and specified that an appropriately qualified person could be retained by Mr and Mrs Adamski (but at cost to Mrs Betty) to supervise that activity and ensure that they were satisfied that the activity to remove the cones from the Bunya Pine had been carried out competently and satisfactorily.

4 On 11 April Mr Adamski, wrote to the Registrar of the Court indicating what he described as his and his wife’s uncertainty that a number of safety issues might not have been addressed during the course of that hearing. The position that subsequently arose when that letter was referred to me for my consideration was that there was clearly an implied application to reopen the proceedings to deal with the four matters contained in Mr Adamski’s letter.

5 In the normal course of events, reopening of proceedings is rarely permitted and, except for correcting clerical and similar matters or vitiating orders which are obtained by fraud, proceedings are virtually never reopened when the formal orders have been perfected.

6 In this case, the formal orders have not been perfected following the decision on 10 April and…

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.

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Details

Case: [2007] NSWLEC 330
Decision Date: 19 April 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over a case involving Ceasar and Jolanta Adamski and Dorothy Betty. The central issue was a dispute regarding the management of a Bunya Pine tree located on Betty's property, which impacted the Adamski's adjoining property. The dispute included questions about the removal of tree cones, the timing of such removals, and the impact of falling foliage. Acting Commissioner Moore and Commissioner Fakes reviewed the site and initially decided that the tree should not be removed but that an annual cone removal process should take place between mid-October and mid-December. They also proposed that the Adamski's could engage an arborist to supervise the cone removal to ensure its competent execution.

The court considered an application to reopen the proceedings based on concerns raised by Mr. Adamski regarding safety issues and the adequacy of the cone removal activities. The court examined the appropriateness of reopening proceedings, balancing the public interest in finality against the need for fairness and resolution of the dispute. Given the informal nature of the proceedings and the legislative intent for speed and informality, the court permitted the reopening of the case on three of the four issues raised by Mr. Adamski, specifically concerning the timing of cone removals, the dropping of foliage, and the adequacy of past cone removal exercises.

In its decision, the court found that there was no evidence suggesting the tree would cause damage to the Adamski's property in the near future, thus declining to address the third issue regarding potential tree growth damage. For the other issues, the court concluded that the recommended timing for cone removals and the necessity for housekeeping regarding falling foliage were adequately addressed by existing evidence and the principles of neighbourly conduct in a leafy urban environment. However, the court allowed the Adamski's to engage an arborist to audit the past cone removal exercises due to evident deficiencies in the December 2006 removal. The court ordered that if additional cones needed to be removed, they should be taken care of within 28 days of the arborist's report.

Orders